People v. Whitt10/25/1990
nder the statute. He identified six circumstances as aggravating (§ 190.3, factors (a)-(e), (g)), two as mitigating (factors (i), (k)), and three as inapplicable (factors (f), (h), (j)). The judge emphasized that defendant, a convicted robber, had "intent[ionally]" killed a bystander by "violen " means in order to flee from a robbery. According to the judge, aggravation "really" outweighed mitigation, and the jury's verdict was "amply justified" by the evidence.
Defendant first claims the judge improperly found that circumstances common to most murders (e.g., intent to kill, use of a shotgun, and violence) were aggravating under factor (a) (circumstances of the crime). (Citing People v. Davenport, supra, 41 Cal. 3d 247, 289 [aggravation is "a circumstance above and beyond the essential constituents of a crime"].) He urges us to find a violation of the constitutional requirement of a "meaningful" distinction between capital and noncapital murderers. (Citing Furman v. Georgia (1972) 408 U.S. 238, 313 [33 L.Ed.2d 346, 392, 92 S.Ct. 2726] (conc. opn. by White, J.).)
However, by limiting death eligibility to those murderers as to whom specified special circumstances have been found true, California's statute satisfies the Eighth Amendment's requirement that the category of death-eligible murderers be suitably narrowed. (See McCleskey v. Kemp (1987) 481 U.S. 279, 301-306 [95 L.Ed.2d 262, 284-288, 107 S.Ct. 1756]; Pulley v. Harris (1984) 465 U.S. 37, 53 [79 L.Ed.2d 29, 42, 104 S.Ct. 871];
Zant v. Stephens (1983) 462 U.S. 862, 873-880 [77 L.Ed.2d 235, 247-252, 103 S.Ct. 2733].) Once such narrowing has occurred, the state, and the sentencer within the state's guidelines, has broad discretion to determine the appropriate penalty for the particular capital offense and offender. (See McCleskey, supra, at pp. 303-304 [95 L.Ed.2d at pp. 285-286]; Zant, supra, at pp. 878-879 [77 L.Ed.2d at pp. 250-251].) In California, such discretion includes the power to determine what "circumstances" of the capital crime "increase its guilt or enormity or add to its injurious consequences." (People v. Davenport, supra, 41 Cal. 3d 247, 289.)
Defendant claims the court "ignored" constitutionally relevant mitigating evidence unrelated to the capital offense itself. He notes that the judge viewed intoxication and family stress at the time of the crimes as "extenuating," but failed to explicitly mention other evidence of defendant's character and background. However, the judge had previously instructed the jury to consider all such evidence, and announced his own obligation to do so at the start of the section 190.4(e) ruling. There is no indication the judge viewed such evidence as irrelevant. To the contrary, the judge said he had considered "sympathy" and defendant's "wishes to stay alive" as " another aspect" of his character offered "as a basis for a sentence less than death." (Italics added.) The motion was denied because aggravation was found to predominate. We see no error. (See, e.g., People v. Ruiz (1988) 44 Cal. 3d 589, 625 [244 Cal. Rptr. 200, 749 P.2d 854].)
Defendant correctly observes that the trial judge mislabeled the absence of mitigating evidence under factors (d) (extreme emotional or mental disturbance), (e) (victim participation or consent), and (g) (duress), as aggravating. However, because such factors are rarely present in capital cases (see People v. Davenport, supra, 41 Cal. 3d 247, 288-289), it is highly unlikely that their absence here significantly influenced the ruling on the modification motion. The judge placed primary aggravatin
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