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People v. Whitt8/27/1984
o deLoach in the county jail was consistent with an antisocial personality.
Notwithstanding all these indications of an antisocial personality, Dr. Lawrence maintained that this disorder was no longer predominant during the few years preceding the offense. Whitt was no longer leading the intense, "high-pitched" and reckless life indicative of an antisocial personality,
as he had done in his twenties. Instead he had withdrawn into an isolated existence with Sherry and was influenced primarily by his psychotic disorder. Dr. Lawrence felt certain that during the days leading up to the offense, this psychosis was affecting his behavior.
In rebuttal, the prosecution presented Dr. Flanagan, who testified that Whitt's prison records from the mid-1970's showed no manifestations of schizophrenia. Dr. Flanagan believed that schizophrenia would be aggravated by a stressful environment such as prison and that symptoms of this condition would have been observed by prison personnel.
The jury returned a sentence of death.
II.
The trial court's failure to instruct the jury under Carlos v. Superior Court, supra, 35 Cal. 3d 131 will be addressed first because this error requires the special circumstance finding to be set aside and the penalty judgment to be reversed.
At the close of the guilt phase, the jury was instructed to find the robbery-murder special circumstance allegation true if it found "that the murder was committed during the immediate flight after the commission of a robbery by the defendant; and . . . that the murder was committed in order to carry out or advance the commission of the crime of robbery or to facilitate the escape therefrom or to avoid detection." (See CALJIC No. 8.81.17 (4th ed., 1980 rev.).) The jury was not instructed to find that Whitt intended to kill or to aid a killing.
In Carlos, this court held that proof of intent to kill or to aid a killing is essential to sustain a felony-murder special circumstance allegation under the 1978 death penalty law. In People v. Garcia (1984) ante, pp. 539, 547-549 [205 Cal. Rptr. 265, 684 P.2d 826] this court has held that Carlos applies retroactively to all cases not yet final. Garcia also holds that where the instructions "completely eliminated the issue of intent to kill from the consideration of the jury," a reversal of the special circumstance finding is required. (Id., at p. 554.)
Garcia recognizes four exceptions to this holding. Two are based on Connecticut v. Johnson (1983) 460 U.S. 73, 87 [74 L.Ed.2d 823, 834, 103 S.Ct. 969, 977-978] and would allow affirmance "if the erroneous instruction was given in connection with an offense for which the defendant was acquitted and if the instruction had no bearing on the offense for which he
was convicted" or "if the defendant conceded the issue of intent." (People v. Garcia, supra, ante, at p. 554.)
The third exception is based on People v. Sedeno (1974) 10 Cal. 3d 703, 721 [112 Cal. Rptr. 1, 518 P.2d 913], and provides that the failure to give a Carlos instruction is harmless error where "'the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions.'" (People v. Garcia, supra, ante, at p. 555, quoting from People v. Sedeno, supra, 10 Cal. 3d at p. 721.)
The fourth exception is fashioned after People v. Cantrell (1973) 8 Cal. 3d 672, 685 [105 Cal. Rptr. 792, 504 P.2
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