People v. Whitt10/25/1990
he judgment is affirmed in its entirety.
MOSK, J., Concurring and Dissenting.
I concur in the judgment as to guilt and death eligibility. After review, I have found no reversible error bearing on those issues.
As to penalty, however, I dissent: the judgment of death should be reversed for prejudicial Skipper error. (Skipper v. South Carolina (1986) 476 U.S. 1 [90 L.Ed.2d 1, 106 S.Ct. 1669].)
This court has recently become notorious for its wholehearted vindication of the "right" of capital defendants to ask for death. (See People v. Clark (1990) 50 Cal. 3d 583, 617-618 [268 Cal. Rptr. 399, 789 P.2d 127]; People v. Bloom (1989) 48 Cal. 3d 1194, 1218-1228, especially 1222 [259 Cal. Rptr. 669, 774 P.2d 698]; People v. Guzman (1988) 45 Cal. 3d 915, 961-963 [248 Cal. Rptr. 467, 755 P.2d 917].) Consistency would seem to have required the majority to vindicate, at least as wholeheartedly, the right of such defendants to ask for life. Alas, the majority permit a double standard.
At the penalty phase, the court summarily sustained prosecution objections to three questions posed to defendant by counsel: "And what do you have to say about stakes [at the penalty phase]?"; "And do you want to live?"; and, "Why do you deserve to live?" In so doing, it erroneously barred evidence that was highly, and indeed uniquely, relevant to the ultimate issue before the jury -- whether they should condemn defendant to death or spare his life. On this record, the error cannot be deemed harmless.
" n capital cases the fundamental respect for humanity underlying the Eighth Amendment, [citation], requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.
"This conclusion rests squarely on the predicate that the penalty of death is qualitatively different from a sentence of imprisonment, however long.
Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case." (Woodson v. North Carolina (1976) 428 U.S. 280, 304-305 [49 L.Ed.2d 944, 961, 96 S.Ct. 2978] (lead opn. of Stewart, Powell and Stevens, JJ.).)
To guarantee that capital sentencing decisions are as individualized and reliable as the Constitution demands, the Eighth Amendment requires that the defendant may not be barred from introducing any relevant mitigating evidence. (Skipper v. South Carolina, supra, 476 U.S. at pp. 4-8 [90 L.Ed.2d at pp. 6-9]; see Eddings v. Oklahoma (1982) 455 U.S. 104, 112-116 [71 L.Ed.2d 1, 9-12, 102 S.Ct. 869]; Lockett v. Ohio (1978) 438 U.S. 586, 597-605 [57 L.Ed.2d 973, 985-990, 98 S.Ct. 2954] (plur. opn. by Burger, C. J.).)
Such evidence includes "any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." (Lockett v. Ohio, supra, 438 U.S. at p. 604 [57 L.Ed.2d at p. 990] (plur. opn. by Burger, C. J.), italics added; see Eddings v. Oklahoma, supra, 455 U.S. at p. 110 [71 L.Ed.2d at p. 8]; Skipper v. South Carolina, supra, 476 U.S. at p. 4 [90 L.Ed.2d at pp. 6-7].)
It follows that to bar a defendant from introducing rel
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