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People v. Whitt10/25/1990
dis. opn. by Mosk, J., post, at p. 666.) The record discloses only that the trial court sustained prosecutorial objections to three preliminary questions. Nothing in the court's words or manner implied that defendant was prevented from (1) continuing with the examination, (2) rephrasing the questions to elicit pertinent mitigating evidence, or (3) making an offer of proof to show that pertinent evidence was being sought from the questions already asked. Rather than pursue any of these options, defense counsel chose to sit his client down. Under these circumstances, the salutary principles of Chapman, supra, 386 U.S. 18, do not compel us to hold that the instant error is reversible.
In his opening brief on appeal, defendant claims he would have told the jury about "changes" in his life and his "worth" as a human being. However, even if it were cognizable at this late stage, defendant's purported "offer of proof" is far too vague to determine whether a jury might have been influenced by his actual testimony.
Nor can we reverse on grounds that defense counsel's failure to rephrase his questions or make an offer of proof constituted ineffective assistance. Because the appellate record does not disclose what evidence was thereby omitted, it provides no basis for concluding that counsel's performance, even if deficient, caused prejudice. (People v. Fosselman (1983) 33 Cal. 3d 572, 584 [189 Cal. Rptr. 855, 659 P.2d 1144]; see Strickland v. Washington (1984) 466 U.S. 668, 691-696 [80 L.Ed.2d 674, 695-699, 104 S.Ct. 2052].)
F. Instructions and Argument on Method of Determining Penalty
Defendant claims the penalty instructions misled the jury into believing that death was "mandatory" under certain circumstances. He cites People v. Brown (1985) 40 Cal. 3d 512, 544, footnote 17 [220 Cal. Rptr. 637, 709 P.2d 440], suggesting that instructions in the literal language of the 1978 death penalty statute could be misunderstood in some cases to mean that the "weighing" process: (1) is mechanical rather than normative, and (2) automatically determines the penalty regardless of jurors' views on appropriateness.
Here, however, the court gave several special instructions anticipating Brown 's concerns. First, in a critical departure from the statutory language, the court told the jury that it "may," not "shall," impose death if it finds that aggravating factors "outweigh" mitigating factors. The court also explained that if "the relative egregiousness or magnitude of the offense is insufficient to warrant" death, the jury is "not required" to impose that penalty but "may exercise mercy and return a verdict of life without possibility of parole." These instructions left no doubt that the jury could reject death if it deemed that penalty inappropriate under the particular circumstances.
To the same end, the jury learned that it was to "consider, take into account, and be guided by" the various statutory factors, "if applicable," and that aggravating factors must be proved beyond a reasonable doubt. The jury was also told that it: (1) could be influenced by sympathy or pity, (2) was prohibited from merely counting the aggravating and mitigating factors, and (3) was required to examine the relative weight, not relative number, of factors.
Moreover, counsel's arguments proceeded on the assumption that the jury was obligated to decide the morally appropriate penalty for defendant's crimes. (See fn. 25.) For example, the prosecutor stressed at the outset that the jury was obligated to select the "appropriate" penalty, and that it
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