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People v. Whitt10/25/1990
was a very "hard" decision to make. He urged jurors to act as
"judges," not "voter ," and to carefully examine the crime from both society's and defendant's viewpoint. In a similar vein, defense counsel observed that the special instructions called for a careful "weighing" process, and permitted the exercise of mercy, sympathy, and compassion. "This is a decision," defense counsel observed, that "will probably stay with you all the rest of your life. [para.] . . . s an individual, you must decide for yourself . . . . We're asking your own individual opinion."
Defendant argues that, assuming aggravation was found to outweigh mitigation, the special instructions were unduly mandatory because they required jurors to impose death if they found defendant's crimes to be "relatively egregious" compared to other crimes or bad acts. On the other hand, he reasons, since no standard of comparison to other capital cases was provided, the jury was left with unfettered sentencing discretion. (Citing Gregg v. Georgia (1976) 428 U.S. 153, 189 [49 L.Ed.2d 859, 883, 96 S.Ct. 2909] (plur. opn. by Stewart, J.).)
We disagree. The disputed segment of the instruction simply emphasized the normative nature of the penalty decision. Jurors were invited to employ their individual consciences in deciding "not between good and bad but between life and death." (People v. Brown, supra, 40 Cal. 3d 512, 541-542, fn. 13.)
Defendant insists the prosecutor exploited any instructional ambiguity by encouraging consideration of "extraneous" factors. He points to prosecutorial argument asking whether this "type of crime" made jurors feel "uncomfortable" or "unsafe," and whether it was "demeaning" to "human life." Viewed in context, however, these remarks directed the jury's attention to the evidence. They immediately preceded the prosecutor's description of this particular robbery-murder -- that defendant shot an innocent bystander "in the middle of a parking lot in the middle of the night." The prosecutor could properly use the circumstances of the crime to imply that defendant is a dangerous person who deserves to die. (See, e.g., People v. Lucky, supra, 45 Cal. 3d 259, 300.)
Defendant also notes the prosecutor identified nine factors as aggravating, none as mitigating, and two as "inapplicable." Defendant claims this numerical count, which was indeed inaccurate (see discussion, post), misled the jury into believing that the crimes were "relatively egregious" and warranted death. The jury, of course, should not base its penalty verdict on
the mere number of factors in each column. (See People v. Brown, supra, 40 Cal. 3d 512, 541.) However, the prosecutor never asked the jury to count factors. He urged them to substantively "weigh" the evidence in each category as directed in the court's penalty instructions. Defense counsel similarly emphasized the nonmechanical nature of the jury's task. There is no reasonable possibility that the prosecutor's comments prevented jurors from weighing the aggravating and mitigating evidence to decide the appropriate penalty.
G. Failure to Delete Assertedly "Inapplicable" Factors; Davenport Error
As noted, the jury was instructed that it "shall consider" each of the statutory mitigating and aggravating factors "if applicable." (See § 190.3; former CALJIC No. 8.84.1.) Defendant contends the court had a sua sponte duty to delete assertedly "inapplicable" mitigating factors such as factors (e), (f), (g), (i), and (j).
No error occurred. Sentencing discretion is best guided where the jury is fully apprised of the factors which the sta
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