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People v. Whitt8/27/1984
rors to " careful as to the amount of notes that you take. I'd rather that you observe the witness, observe the demeanor of that witness, listen to how that person testifies rather than taking copious notes . . . . you do not recall exactly as to what a witness might have said or you disagree, for instance, during the deliberation [ sic ] as to what a witness may have said,
we can reread that transcript back by that witness back to you. Remember that aspect of it."
While this instruction was not as complete as the one outlined in DiLuca, it did inform the jury of the dangers which Maclean and DiLuca noted. Thus, the instruction substantially complied with the principles endorsed by these cases, even though a more complete instruction would have been preferable.
In any event, the evidence of guilt was relatively simple. The percipient witnesses to the assault and robbery gave straightforward accounts of the incidents. Even though Whitt presented evidence of diminished capacity, he never argued from this evidence that he was unable to form the specific intent to commit robbery, and such evidence would not have negated his mens rea for the assault, a general intent crime. No other defense evidence suggested that he lacked the mens rea for either offense. Thus, the absence of a more extensive instruction on note-taking did not prejudice Whitt.
V.
(See fn. 21.) The judgment of guilt is affirmed. The special circumstance finding is ordered to be set aside, since the jury did not find that Whitt intended to kill or aid in a killing. As this was the sole special circumstance alleged, the ensuing judgment of death is reversed.
Disposition
Judgment affirmed in part, reversed in part.
LUCAS, J. I concur with the majority opinion to the extent it affirms defendant's conviction of murder and other lesser offenses. I dissent, however, from the majority's reversal of the special circumstances finding and the judgment of death. In my view, the death penalty was properly imposed for defendant's commission of murder during a robbery. (See Pen. Code, § 190.2, subd. (a)(17)(i).)
The majority relies upon Carlos v. Superior Court (1983) 35 Cal. 3d 131 [197 Cal. Rptr. 79, 672 P.2d 862], for the proposition that the foregoing felony-murder special circumstance provision impliedly requires an intent to kill. Although I did not participate in Carlos, I am convinced by the analysis contained in Justice Richardson's dissent in that case (see id., at pp. 156-160) that (1) neither the framers of nor the voters for the 1978 death penalty initiative contemplated the new law would require proof of an intent to kill in a felony-murder situation, and (2) imposition of the death penalty for felony murder is not prohibited by federal constitutional principles. No purpose would be served by reiterating Justice Richardson's analysis here.
Believing as I do that Carlos was incorrectly decided, a fortiori, I would not apply that case retroactively to all cases pending on appeal, nor would
I impose the unrealistically rigid harmless error standards previously chosen by the majority. (See People v. Garcia [(1984) ante, pp. 539, 554-556 (205 Cal. Rptr. 265, 684 P.2d 826)].) In sum, finding myself in total disagreement with both Carlos and Garcia, I must dissent to the majority's reliance upon those cases in reversing the judgment of death.
In addition, I also disagree with the majority's ruling, for guidance of the trial court on retrial, re
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