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People v. Whitt10/25/1990
at the response would be "self-serving" as well as irrelevant. But obviously, the whole of defendant's testimony at the penalty phase would be "self-serving." It is well settled that compliance with the requirement of Evidence Code section 354 is excused when "the trial judge . . . indicates that he will not receive evidence on a certain subject . . . ." (3 Witkin, Cal. Evidence (3d ed. 1986) Introduction of Evidence at Trial, § 2044, pp. 2002-2003, collecting cases.) As noted, the trial judge so indicated here.
But even if the majority's unusual "requirement" is held to be applicable, it must be deemed satisfied. The very thrust of the defense case "made known" the "substance, purpose, and relevance" of the unconstitutionally excluded evidence: its "substance" was that defendant was not the man he once was; its "purpose" was to show rehabilitation; and its "relevance" was to lay "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.)).
The majority demand more. Speaking of a statement in defendant's opening brief, they assert: " efendant claims he would have told the jury about 'changes' in his life and his 'worth' as a human being. However, . . . defendant's purported 'offer of proof' is far too vague to determine whether a jury might have been influenced by his actual testimony." (Maj. opn., ante, at p. 650.) What is needed, the majority seem to say, is defendant's "actual testimony." But that is the very matter the court unconstitutionally barred.
For the foregoing reasons, I would reverse the judgment of death.
BROUSSARD, J., Concurring and Dissenting.
I join in the concurring and dissenting opinions of Justices Mosk and Kennard asserting that 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].) I write separately to draw attention to two additional points.
In People v. Whitt (1984) 36 Cal. 3d 724 [205 Cal. Rptr. 810, 685 P.2d 1161] (Whitt I) we vacated the special circumstance finding and reversed the penalty judgment in this case because of instructional error under Carlos v. Superior Court (1983) 35 Cal. 3d 131 [197 Cal. Rptr. 79, 672 P.2d 862]. Although on retrial the court instructed on intent-to-kill pursuant to Carlos, defendant raises several claims on appeal relating to the intent-to-kill element upon which the jury was instructed. I agree that these arguments are insubstantial and would not warrant reversal, but I do not agree with the majority that we should dispense with the law of the case in this context and refuse to apply the rule of Carlos. Our decision in Whitt I on the Carlos point is law of the case, and no manifest injustice is perpetrated by adhering to it now.
An appellate court's resolution of a controlling issue in an appeal is binding throughout the subsequent progress of the case through the trial and appellate courts. (People v. Shuey (1975) 13 Cal. 3d 835, 841 [120 Cal. Rptr. 83, 533 P.2d 211].) Sometimes this rule is too harsh in application, and we dispense with it. (Id., at pp. 845-846; DiGenova v. State Board of Education (1962) 57 Cal. 2d 167, 179-180 [18 Cal. Rptr. 369, 367 P.2d 865].) We only dispense with it, however, when it would be unjust to adhere to it. (People v. Shuey, supra, 13 Cal. 3d 8
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