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People v. Whitt10/25/1990
g weight on the callous nature of the crimes and defendant's prior conviction (factors (a)-(c)). Any mischaracterization of factors was therefore harmless under any standard. (See, e.g., People v. Hamilton, supra, 48 Cal. 3d 1142, 1186-1187; People v. Brown, supra, 46 Cal. 3d 432, 462.)
As noted by defendant in his supplemental brief, the judge read the probation report before the section 190.4(e) hearing. The report was
mentioned twice during the hearing itself. First, the judge opined that defendant's statement in the report denying the murder was "not credible" in light of evidence introduced at trial. Second, defense counsel commented towards the end of the hearing that no evidence supported Goforth's statement -- recounted in attachments to the same report -- that her back had been injured in the assault. The judge agreed with counsel on this point.
Probation reports and victim impact statements are not presented to the jury (see §§ 1191.1, 1203, subd. (b)), and should not be read and considered by the trial judge when ruling on the automatic modification motion. (People v. Lewis (1990) 50 Cal. 3d 262, 287 [266 Cal. Rptr. 834, 786 P.2d 892] (Lewis).) The "preferable procedure" is to defer the reading of these materials until after the ruling. (Ibid.)
Here, however, the probation report obviously did not influence the court's decision to deny the motion. (See, e.g., People v. Ramirez, supra, 50 Cal. 3d 1158, 1201.) As noted, the trial judge relied exclusively upon the intentional, callous nature of the robbery-murder and defendant's prior robbery conviction. The judge made it clear that his "independent" review of the evidence revealed that aggravation "really" outweighed mitigation. Moreover, unlike the probation reports in either Lewis (judgment vacated) or Ramirez (judgment not vacated), the instant materials contained little evidence not introduced at trial. Under the circumstances, we find no "reasonable possibility that the court's improper consideration of the probation report affected its section 190.4(e) ruling. [Citation.]" (Ramirez, supra, 50 Cal. 3d 1158, 1202.)
K. Constitutionality of the 1978 Death Penalty Statute
Defendant contends the 1978 death penalty statute is unconstitutional insofar as it lacks the following requirements: (1) proof beyond a reasonable doubt of the existence of aggravating factors; (2) jury unanimity as to any aggravating factors found to support a death sentence; and (3) a jury finding beyond a reasonable doubt that aggravation outweighs mitigation and that death is the appropriate penalty. As conceded by defendant, we have consistently rejected similar attacks on both the 1977 and 1978 laws. (People v. Caro, supra, 46 Cal. 3d 1035, 1068 [1978 law]; People v. Howard (1988) 44 Cal. 3d 375, 443-444 [243 Cal. Rptr. 842, 749 P.2d 279] [same]; People v.
Rodriguez, supra, 42 Cal. 3d 730, 777-779 [same]; People v. Jackson (1980) 28 Cal. 3d 264, 315-317 [plur. opn.], 318-319 [conc. opn. of Newman, J.] [168 Cal. Rptr. 603, 618 P.2d 149] [1977 law]; People v. Frierson (1979) 25 Cal. 3d 142, 176-180 [158 Cal. Rptr. 281, 599 P.2d 587] [plur. opn.] [same].) We see no reason to reconsider these decisions.
IV.
The judgment is affirmed in its entirety.
Disposition
T
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