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People v. Whitt10/25/1990
he court misled the jurors by not informing them that commutation could be granted to defendant, an ex-felon, only "on recommendation of the Supreme Court, 4 judges concurring." (Cal. Const., art. V, § 8, subd. (a).)
Defendant's motion was denied as untimely. The court also said it would not have told the jury about the four-judge requirement in any event, because such information would only encourage further juror speculation. According to the court, the admonition against consideration of commutation cured any prejudice to defendant.
Defendant now claims the court should have instructed according to its original intent, i.e., that life without possibility of parole "means exactly what it says." He insists the court had no power to give the modified Briggs Instruction under Ramos, supra, 37 Cal. 3d at page 159, footnote 12, because the jury did not "expressly" ask about commutation. We disagree.
Ramos observed that the jury may be more likely to impose death if it mistakenly believes that only a sentence of life without parole can be commuted to a lesser sentence which includes the possibility of parole. (37
Cal. 3d at pp. 153-155 & fn. 8.) Thus, under Ramos, the court has authority to give the modified Briggs Instruction where it has reason to believe that the jury is speculating about such a future reduction of sentence. Here, the jury's inquiry about the "mean " and "defin[ition]" of life without possibility of parole implicitly raised the commutation question. (See People v. Hunter, supra, 49 Cal. 3d 957, 981-983; People v. Bonillas (1989) 48 Cal. 3d 757, 797-798 [257 Cal. Rptr. 895, 771 P.2d 844].) The court could reasonably conclude that any further inquiry about the exact nature of the jury's concern would only have focused its attention on irrelevant matters. We see no error under Ramos, supra, 37 Cal. 3d 136.
In any event, the court admonished jurors that they were not to consider the possibility of commutation in determining the appropriate sentence. Any error under Ramos, supra, 37 Cal. 3d 136, was therefore harmless. (People v. Coleman (1988) 46 Cal. 3d 749, 782 [251 Cal. Rptr. 83, 759 P.2d 1260]; People v. Hamilton (1988) 45 Cal. 3d 351, 375 [247 Cal. Rptr. 31, 753 P.2d 1109]; People v. Hovey (1988) 44 Cal. 3d 543, 584 [244 Cal. Rptr. 121, 749 P.2d 776].)
Defendant also argues the court erred in failing to instruct, sua sponte, that his sentence could not be commuted without the approval of a majority of the Supreme Court. This instruction is obviously intended to imply that the four-judge requirement stands as a substantial obstacle to commutation of an ex-felon's sentence. As noted by the trial court, however, such information would only have focused the jury's attention on extraneous and speculative matters. Defendant also fails to demonstrate that such a "pinpoint" instruction would not itself have misled the jury by suggesting that commutation is highly unlikely in his particular case. (See generally People v. Hendricks (1988) 44 Cal. 3d 635, 643 [244 Cal. Rptr. 181, 749 P.2d 836] [court may refuse to give confusing instruction].)
I. Motion to Substitute Counsel
Defendant contends the court committed reversible error in failing to grant his request for substitute appointed counsel at a posttrial
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