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People v. Whitt10/25/1990
People v. Keenan, supra, 46 Cal. 3d at pp. 505-507; People v. Ghent, supra, 43 Cal. 3d at pp. 758-759.) Here, application of Anderson, supra, 43 Cal. 3d 1104, simply precludes a possible third trial of the felony-murder special circumstance for redetermination of an issue which the law now deems to be immaterial. Defendant is in the same position as all appellants who personally committed felony murder before Carlos, supra, 35 Cal. 3d 131, including those whose trials were conducted while Carlos was the applicable law. (See People v. Ramirez, supra, 50 Cal. 3d at pp. 1182-1183.) The only difference in defendant's case is the fortuitous timing of his first appeal. We see no injustice in applying Anderson to defendant's pre- Carlos robbery-murder.
III. Penalty Phase Issues
A. Pretrial Instruction on Case History
Defendant challenges an instruction read to prospective jurors before voir dire, and repeated immediately before the start of the special circumstance retrial. The instruction described the prior jury's verdict (including the death sentence), this court's subsequent disposition on automatic appeal, and the jury's duties on retrial.
Defendant contends the instruction violated Eighth Amendment constraints against leading the sentencer "to believe that the responsibility for determining the appropriateness of the defendant's death rests elsewhere." (Caldwell v. Mississippi (1985) 472 U.S. 320, 328-329 [86 L.Ed.2d 231, 239, 105 S.Ct. 2633].) Defendant insists the instruction encouraged jurors to focus upon "irrelevant" and "speculative" information, and to overlook mitigating evidence introduced about his particular crimes and background. (See People v. Ramos, supra, 37 Cal. 3d 136, 155-158; see also People v. Thompson (1990) 50 Cal. 3d 134, 178 [266 Cal. Rptr. 309, 785 P.2d 857].) The prosecutor purportedly exploited the prior verdict in closing argument.
However, any "error" in giving the instruction was invited by defendant's "own conduct." (People v. Lang (1989) 49 Cal. 3d 991, 1031-1032 [264 Cal. Rptr. 386, 782 P.2d 627], citing People v. Perez (1979) 23 Cal. 3d 545, 549-550, fn. 3 [153 Cal. Rptr. 40, 591 P.2d 63].) At the court's request, the prosecutor and defense counsel each submitted an informal written statement from which the court and counsel fashioned the instruction. Defendant, through his own statement, urged the court to instruct the jury with virtually all of the information now challenged on appeal, i.e., that the prior jury imposed death, that this court reversed the special circumstance and penalty determinations for instructional error, and that the second jury was required to "redetermine[ ]" these two issues. Although it is not clear whether defendant's statement mentioned the "automatic" nature of the appeal, he did not object to ultimate inclusion of this fact in the court's instruction. Defendant's objections were limited to any reference to the prior jury's finding that the special circumstance allegation was true.
Counsel's tactical reason for disclosing the prior death sentence is clear. Realizing that little mitigating weight might be placed on defendant's "normal middle class" background, counsel plausibly chose to present a defense of "Death Row" redemption. (See, e.g., People v. Robertson (1989) 48 Cal. 3d 18, 33-34 [255 Cal. Rptr. 631, 767
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 California DUI Attorneys
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