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People v. Kraft8/10/2000
lated conclusion from the guilt phase upholding the sodomy special-circumstance finding, we disagree. Even were our conclusion otherwise, given the magnitude of defendant's crimes there is no reasonable possibility of a more favorable penalty verdict had the jury not considered the sodomy special circumstance. (People v. Roberts, supra, 2 Cal.4th at p. 327.)
4. Alleged Prosecutorial Misconduct
Defendant contends the prosecutor engaged in misconduct by improperly "turning a mitigating factor into an aggravating factor." Specifically, he urges that the prosecutor exhorted the jury to use the factor of sympathy in aggravation. In discussing section 190.3, factor (k), the prosecutor argued during his summation: "Now, how much sympathy does Mr. Kraft deserve? Has Mr. Kraft shown sympathy along the line? On any of these prolonged killings, did Mr. Kraft show sympathy, compassion, pity? Did he show any at all with respect to Terry Gambrel?" The prosecutor further urged the jury, in examining the photo album of defendant's life prepared by the defense investigator, to compare the dates of pictures to the dates of defendant's killings. The prosecutor suggested: "And as you go through his picture life that Mrs. Ramsay made, go through his, his life of killing and maiming, integrate the two and then ask yourselves how much sympathy, compassion and pity does Mr. Kraft deserve from you?" Defendant contends that, because factor (k) can only be a mitigating factor (People v. Whitt (1990) 51 Cal.3d 620, 654), the prosecutor's argument asking the jury to disregard sympathy for defendant and to aggravate the sentence because defendant showed no sympathy for his victims constituted misconduct.
The point is waived for lack of a contemporaneous objection. (People v. Gonzalez (1990) 51 Cal.3d 1179, 1215-1216.) Although defendant contends an objection would have been futile, we disagree: No reason appears why an admonition by the trial court would not have cured any error. (People v. Green, supra, 27 Cal.3d at p. 29.) In any event, the prosecutor's remarks constituted appropriate comment on the evidence. The prosecutor merely responded to defense argument urging sympathy for defendant and sought to negate its mitigating effect by highlighting defendant's apparent lack of concern for the murder victims. (See People v. Bemore (2000) 22 Cal.4th 809, 855.) Even had the argument exceeded the bounds of propriety, on the record of this case it is inconceivable defendant would have suffered any prejudice. For these reasons, trial counsel's failure to object did not amount to ineffective assistance.
5. Failure To Instruct on Burden of Proof of Existence of Mitigating Factors
The defense requested a special instruction that would have told the jury: "A mitigating circumstance need not be proved beyond a reasonable doubt to exist." Although the prosecution did not object, the trial court declined to give the requested instruction, reasoning it could be misinterpreted to require all aggravating circumstances to be proven beyond a reasonable doubt, when some (for example, the defendant's age) need not meet such a standard. The trial court instead instructed the jury: "You may also consider, take into account, and be guided by the following factors in mitigation if you find them to be true . . . ." and proceeded to enumerate various factors. Defendant contends the trial court erred in refusing his requested instruction and in failing sua sponte to give an accurate instruction on the burden of proof or persuasion as to mitigating circumstances, which would have entailed instructing the jury as to the substantial evidence standard (see People v. Wharton (1991) 53 Cal.3d 522, 600-601).
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 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 California DUI Attorneys
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