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People v. Whitt10/25/1990
. Rptr. 604, 758 P.2d 1135].)
First, as to factor (k), the jury was instructed that this category includes not only circumstances which extenuate the gravity of the crime, but also "any other aspect of the defendant's character or record that offers as a basis for a sentence less than death." (See People v. Easley, supra, 34 Cal. 3d 858, 878, fn. 10.) Defense counsel reviewed evidence of defendant's medical problems as a child, his drug and mental problems as an adult, and his rehabilitative potential as a prisoner. Counsel urged the jury to consider these facts as mitigating under the catchall provisions of factor (k), even if they did not "satisfy" the language of factors (d) and (h). The prosecutor essentially replied that such evidence was entitled to little mitigating weight. He noted, among other things, that defendant's childhood was "nondeprived," that his drug and alcohol problems were self-imposed, and that the family's efforts to rehabilitate him had been rebuffed. Even though the prosecutor described factor (k) as "aggravating," any chance that the jury would consider background and character evidence as anything other than mitigating was minimal.
Moreover, the instructions and argument fully explained the jury's power and duty to determine the "appropriate" penalty by "weighing" the pertinent sentencing factors. The jury heard the entire list of factors, and was told to consider only the "applicable" ones. In addition, defense counsel disputed the prosecutor's view of the aggravation-mitigation balance. Without objection, counsel argued that factors (d), (h), and (k) were mitigating. Counsel also reminded jurors that they alone were to decide the weight of each factor, and that they need not unanimously agree on the existence of mitigating factors. We see no reasonable possibility that the prosecutor's argument influenced the penalty verdict.
H. Instruction on Governor's Commutation Power
Defendant claims the court committed reversible error under People v. Ramos, supra, 37 Cal. 3d 136 (Ramos). Ramos held that the so-called Briggs Instruction -- describing the Governor's power to commute a sentence of life imprisonment -- violates state due process guaranties because it "mislead " the jury into believing that a death sentence cannot also be commuted, and invites consideration of irrelevant and "speculative" matters. (Id., at p. 153; but see California v. Ramos (1983) 463 U.S. 992 [77 L.Ed.2d 1171, 103 S.Ct. 3446] [finding no federal constitutional error].)
Two hours after the jury began penalty deliberations, it sent the trial court a note asking "what 'life without possibility of parole' means or how it is defined." Conferring with counsel in chambers, the court recalled that none of the impaneled jurors had mentioned parole or commutation during voir dire. The court said it intended to instruct the jury that life without possibility of parole "means exactly what it says, to wit, life without possibility of parole." Defense counsel concurred.
The prosecutor countered that the jury was obviously speculating about the possibility of commutation, and that the court was authorized to give a "modified" version of the Briggs Instruction. The court agreed and, over defense objection, instructed the jury that "the Governor's commutation power applies to both sentences, to wit, one[,] death or, two, life without possibility of parole. [para.] . . . t would be a violation of your duty as a juror to consider the possibility of such commutation in determining the appropriate sentence."
The next morning, defendant moved for a mistrial. He claimed t
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