People v. Whitt10/25/1990
tted to present "any and all relevant mitigating evidence that is available." (Skipper v. South Carolina (1985) 476 U.S. 1, 8 [90 L.Ed.2d 1, 9, 106 S.Ct. 1669]; Eddings v. Oklahoma (1982) 455 U.S. 104, 117 [71 L.Ed.2d 1, 12-13, 102 S.Ct. 869]; Lockett v. Ohio (1978) 438 U.S. 586, 604 [57 L.Ed.2d 973, 990, 98 S.Ct. 2954].) Here the trial court failed to comply with this requirement when it precluded defendant from explaining why he deserved to live. Justice Mosk points out in his concurring and dissenting opinion that unless this court can declare its belief that the error, which is of federal constitutional dimension, was harmless beyond a reasonable doubt, reversal of the penalty judgment is required. I agree. I write separately, however, to expand on the
essential flaw in the majority's refusal to consider whether the error might have affected the jury's decision to impose the death penalty, and to show that, contrary to the majority's determination, the record adequately reveals the nature of the mitigating evidence defendant was precluded from presenting.
Discussion
Under California law, error in a criminal case is considered harmless unless the defendant can show it resulted in a "miscarriage of justice." (Cal.Const., art. VI, § 13; People v. Archerd (1970) 3 Cal. 3d 615, 643 [91 Cal. Rptr. 397, 477 P.2d 421].) This means the defendant must demonstrate that without the error "it is reasonably probable a result more favorable" to the defendant would have been reached. (People v. Watson (1956) 46 Cal. 2d 818, 836 [299 P.2d 243].) In Chapman v. California (1966) 386 U.S. 18, 23-24 [17 L.Ed.2d 705, 710-711, 87 S.Ct. 824, 24 A.L.R.3d 1065], the United States Supreme Court rejected California's "miscarriage of justice" test as inappropriate for evaluating federal constitutional error. Under Chapman, "the beneficiary of a [federal] constitutional error" must prove beyond a reasonable doubt "that the error complained of did not contribute to the verdict obtained." (Ibid. [17 L.Ed.2d 705, 710-711].) Thus, when the error violates the federal Constitution, the defendant need not show prejudice; rather, the prosecution must establish the absence of prejudice.
In this case, the majority acknowledges that by precluding defendant from answering the question, "Why do you deserve to live?," the trial court denied defendant his right to have the jury consider aspects of his character from which it might have drawn favorable inferences bearing on "his probable future conduct if sentenced to life in prison." (Skipper v. South Carolina, supra, 476 U.S. 1, 4 [906 L.Ed.2d 1, 7].) (Maj. opn., ante, p. 647.) We apply the Chapman test to a finding of " Skipper " error. (People v. Lucero (1988) 44 Cal. 3d 1006, 1032 [245 Cal. Rptr. 185, 750 P.2d 1342].) Here, because defendant did not make an offer of proof concerning the specific content of the mitigating evidence he tried to present, the majority reasons that it cannot, and thus need not, decide whether the error prejudiced defendant's penalty phase case. I disagree.
As noted earlier, under Chapman, supra, 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711], federal constitutional error is prejudicial and requires reversal unless the reviewing court can ascertain from the record that the error was harmless beyond a reasonable doubt. The prosecution has the burden of showing that the error did not contribute to the verdict. To condition an evaluation of federal constitutional error on a defendant's offer of proof, as the majority does, relieves the beneficiary of the er
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