People v. Samuels

¶1Having found no error requiring reversal, I concur in the majority’s decision to affirm the judgment. I write separately, however, to suggest the time has come to modify our position concerning whether a jury in a capital case should be completely informed of the meaning of life imprisonment without the possibility of parole.

¶2The trial court in this case delivered CALJIC No. 8.84, the standard jury instruction concerning the penalties applicable in a capital case. That instruction states in pertinent part: “It is the law of this state that the penalty for a defendant found guilty of murder of the first degree shall be death or imprisonment in the state prison for life without possibility of parole in any case in which the special circumstance[s] alleged in this case [has] [have] been specially found to be true.” (Italics added.) We have, in prior cases, *139rejected the contention that the term “life without possibility of parole,” as used in this instruction, “confuses jurors or has a technical meaning that requires a sua sponte definitional instruction.” (People v. Smithey (1999) 20 Cal.4th 936, 1009 [86 Cal.Rptr.2d 243, 978 P.2d 1171]; see, e.g., People v. Prieto (2003) 30 Cal.4th 226, 270-271 [133 Cal.Rptr.2d 18, 66 P.3d 1123]; People v. Ochoa (1998) 19 Cal.4th 353, 457 [79 Cal.Rptr.2d 408, 966 P.2d 442]; People v. Sanders (1995) 11 Cal.4th 475, 561-562 [46 Cal.Rptr.2d 751, 905 P.2d 420].) Our position on this issue has been clear and consistent.

¶3Jurors, however, faced with making the enormous decision whether or not to impose society’s ultimate criminal penalty, apparently are not so confident about the plain meaning of CALJIC No. 8.84. For example, in People v. Snow (2003) 30 Cal.4th 43 [132 Cal.Rptr.2d 271, 65 P.3d 749], the jury, after retiring to deliberate, sent out a note asking the trial judge: “ ‘If we give life imprisonment without possibility of parole, can we be assured he will never be[] released from prison[?]’ ” (Id. at p. 123.) Similarly, in People v. Hart (1999) 20 Cal.4th 546 [85 Cal.Rptr.2d 132, 976 P.2d 683], the jury, prior to closing argument, sent the trial court a note asking: “ ‘Does life in prison without the possibility of parole mean he will never get out under any circumstances?’ ” (Id. at p. 654.) In People v. Bonillas (1989) 48 Cal.3d 757 [257 Cal.Rptr. 895, 771 P.2d 844], the jury, after retiring to deliberate, sent out a note asking: “ ‘Is there any way at all that a parole could be granted[?] Please list the ways.’ ” (Id. at p. 797.) In People v. Silva (1988) 45 Cal.3d 604 [247 Cal.Rptr. 573, 754 P.2d 1070], the jury asked this question: “ ‘[D]oes life in prison without possibility of parole mean just that, or is parole possible at some future date? If so, under what circumstances?’ ” (Id. at p. 640.) The instant case is no different; here, the jury sent out a note during deliberations that asked: “Does ‘without the possibility of parole’ mean no chance of parole—ever![?]”

¶4Defense attorneys, aware of this potential confusion, often propose a special instruction in an attempt to clarify the meaning of a sentence of life imprisonment without the possibility of parole. For example, in People v. Gutierrez (2002) 28 Cal.4th 1083 [124 Cal.Rptr.2d 373, 52 P.3d 572], the defendant proposed an instruction that would have informed the jury that “life without the possibility of parole means ‘defendant will be imprisoned for the rest of his life.’ ” (Id. at p. 1159.) In People v. Thompson (1988) 45 Cal.3d 86 [246 Cal.Rptr. 245, 753 P.2d 37], the defendant proposed this instruction: “ ‘[I]f you determine that life without the possibility of parole is the proper sentence, you are instructed that the defendant will never be released from prison.’ ” (Id. at p. 129.) In the instant case, defendant proposed this penalty phase instruction: “You are instructed that life without possibility of parole means exactly what it says: The defendant will be *140imprisoned for the rest of her life. [$]... [£] For you to conclude otherwise would be to rely on conjecture and speculation and would be a violation of your oath as trial jurors.”

¶5We generally affirm a trial court’s rejection of such proposed instructions on the ground the instruction is technically incorrect (see People v. Musselwhite (1998) 17 Cal.4th 1216, 1271 [74 Cal.Rptr.2d 212, 954 P.2d 475]) because a defendant, sentenced by a jury to life imprisonment without the possibility of parole, could still gain his freedom if a state or federal appellate court grants relief on appeal, or if the Governor exercises his commutation or clemency power (People v. Thompson, supra,45 Cal.3d at p. 130). Although rare, these possibilities nevertheless exist.

¶6Because the jury in this case specifically asked the trial court for guidance on the question of the possibility of parole, we know it was concerned about this issue. Given that the jury had already been instructed and had retired to deliberate, its question came at a critical point in the trial. Under the circumstances, the trial court should have answered the question. Penal Code section 1138 provides: “After the jury have retired for deliberation, . . . if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called.” (Italics added.)

¶7Some jurors may have been concerned that the primary actor in a conspiracy that resulted in two murders could eventually go free were they to vote for life imprisonment instead of death. By simply rereading CALJIC No. 8.84—the same instruction already provided to the jury—the trial court failed to clarify the legal issue that concerned the jury and thus ran the risk that some jurors, erroneously believing release on parole was a possibility, voted to impose the death penalty as a way of ensuring defendant would never be released to kill again. A death penalty verdict reached under such circumstances may implicate a defendant’s right to due process of law. (See Simmons v. South Carolina (1994) 512 U.S. 154, 162 [129 L.Ed.2d 133, 114 S.Ct. 2187] (plur. opn.) [due process violated when state imposes death sentence based in part on the defendant’s future dangerousness when jury not informed the alternative penalty of life imprisonment was without parole].)

¶8Providing the jury with a more complete picture of the legal effect of a sentence of life without the possibility of parole, admittedly, may encourage it to speculate on matters irrelevant to its penalty decision. We faced a similar situation in People v. Ramos (1984) 37 Cal.3d 136 [207 Cal.Rptr. 800, 689 P.2d 430], concerning whether a trial judge in a capital trial should inform the jury of the Governor’s commutation power. We concluded: “When the jury raises the commutation issue itself—either during voir dire or in a question *141posed to the court during deliberations—the matter obviously cannot be avoided and is probably best handled by a short statement indicating that the Governor’s commutation power applies to both sentences but emphasizing that it would be a violation of the juror’s duty to consider the possibility of such commutation in determining the appropriate sentence.” (Id. at p. 159, fn. 12.)

¶9We should apply the same approach to a jury’s question concerning the meaning of life imprisonment without the possibility of parole. Thus, although CALJIC No. 8.84 seems clear on its face, some jurors may nevertheless believe a Ufe prisoner will still be able to obtain release on parole sometime in the future. If the jury submits a question on this topic, I believe the trial court should respond with a short statement explaining that, in unusual cases, future action by the judiciary or the Governor may permit the defendant to obtain parole, that such possibilities apply whether the jury imposes a sentence of death or of life without the possibility of parole, that the jury should assume such future actors will follow the law, and that the jury should not speculate on such possibilities and should assume the sentence it reaches will be carried out.1 (See People v. Thompson, supra,45 Cal.3d at p. 131; see generally People v. Davis (1995) 10 Cal.4th 463, 547 [41 Cal.Rptr.2d 826, 896 P.2d 119] [quoting extensive instructions concerning the import of a sentence of death or of life without the possibility of parole and the factors the jury cannot properly consider].) In that way, the jury is fully informed as to its sentencing choices but is instructed not to consider matters irrelevant to its decision. A contrary conclusion, in which we tolerate a jury reaching a penalty decision while uncertain of the true meaning of the applicable penalty choices, seems unwise.

¶10In the present case, the trial court indicated that if the jury were again to question the meaning of “life without possibility of parole” it would provide “a further answer.” No further question was asked. Because nothing in the record suggests the trial court’s failure to clarify the law in response to the jury’s question convinced a juror to vote for death instead of life imprisonment, I cannot now conclude the trial court’s failure to clarify CALJIC No. 8.84 was prejudicial. Accordingly, I concur.

¶11Kennard, J., concurred.

¶13I join the majority in affirming the judgment. I write separately to express my disagreement with the majority’s analysis of two issues, one pertaining to financial motive to kill, the other involving the prosecutor’s biblical references.

¶14I

¶15At the guilt phase of defendant Mary Ellen Samuels’s capital trial for the murders of her estranged husband and an accomplice who, she feared, would report the killing of her husband to the police, the prosecution presented this evidence: As a beneficiary of her husband’s life insurance policy defendant received more than $240,000 in proceeds; she got $70,000 for selling a sandwich shop that she and her husband had owned; and she obtained $160,000 by refinancing the family home. She then spent the money on such things as an expensive sports car, a large television, limousine service, property in a Mexican resort, and clothing from a store called Trashy Lingerie.

¶16Defendant challenges the trial court’s admission into evidence of how she spent the money, contending it was inadmissible character evidence. The majority brushes the contention aside with this cursory comment: “[Tjhere was no error. The evidence was relevant to prove defendant’s financial motive for killing Samuels. (People v. Sapp (2003) 31 Cal.4th 240, 313 [2 Cal.Rptr.3d 554, 73 P.3d 433].)” (Maj. opn., ante, at p. 112.) The majority’s citation of Sappis puzzling; no issue in that case bears the faintest resemblance to the merry widow’s spending spree at issue here.

¶17In Sapp, a jury convicted the defendant of murdering three people. Thereafter, in closing argument at the penalty phase, the prosecutor referred to evidence at the penalty phase that the defendant had also killed his mother (a crime for which he was not convicted), and argued that like the other murders, the defendant had a financial motive to kill his mother, because he owed her $60,000. On appeal, the defendant in Sappcontended that the trial court should have instructed the jury that in determining whether he had killed his mother (a prerequisite for using that fact against him as an aggravating circumstance at the penalty phase), the jurors should not infer, based on his commission of the charged murders, that he had a propensity toward criminal behavior. This court held that the evidence did not warrant such an instruction. (People v. Sapp, supra,31 Cal.4th at pp. 312-313.)

¶18Sappis inapposite. (1) At issue there was the trial court’s failure to give a particular jury instruction; at issue here isthe admissibility of evidence. *143(2) Sappinvolved the penalty phase of a capital trial; this case involves the guilt phase. (3) In Sapp, the prosecutor tried to use evidence of three murders to prove the commission of a fourth murder; here, the prosecutor used evidence of defendant’s spending spree after her husband’s death to prove that she killed him.

¶19The only aspect of Sappthat remotely resembles this case is the prosecutor’s reference in Sappto evidence that the defendant had a “financial motive” (People v. Sapp, supra, 31 Cal.4th at p. 312) to kill his mother because he owed her money. But that evidence is wholly unlike the evidence of financial motive at issue here, which pertains to how defendant spent the inherited money; in any event, this court’s opinion in Sappdid not address the admissibility of that evidence. Thus, Sapphas no bearing on the issue here: Whether, as the majority holds, the manner in which defendant spent the money she inherited from the murder victim shows that she had a financial motive to kill him. The issue ought to be resolved by applying established principles on the admissibility of evidence.

¶20Only relevant evidence is admissible. (Evid. Code, § 350.) Relevant evidence is evidence “having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) “The test of relevance is whether the evidence tends ‘logically, naturally, and by reasonable inference’ to establish material facts . . . .” {People v. Garceau (1993) 6 Cal.4th 140, 111 [24 Cal.Rptr.2d 664, 862 P.2d 664].) Motive is a material fact. {Ibid.)

¶21Evidence that a defendant charged with murder inherited property or collected life insurance benefits from the victim is relevant, and therefore admissible, when the defendant knew of the policy’s existence at the time of the victim’s death. {People v. Goedecke (1967) 65 Cal.2d 850, 860 [56 Cal.Rptr. 625, 423 P.2d 777].) Such evidence would tend to show that the defendant had a motive for the murder. Thus, here the prosecution was entitled to introduce evidence that defendant collected life insurance benefits and inherited property on the death of her estranged husband, because it is reasonable to infer that she knew she would be entitled to them when her husband died. But what she did with those assets has no bearing on her motive to kill. How one disposes of inherited money or property differs from person to person. Some may choose to invest in the stock market or to support a favorite charity. Others may decide to use the inherited wealth to indulge in a buying spree largely for their own benefit and enjoyment, as occurred here. In either situation, how the inheritance is spent has no “tendency in reason” (Evid. Code, § 210) to establish a motive for the killing by which the funds were obtained. *144Thus, the evidence of defendant’s spending habits after her husband’s death served only to show, as defendant puts it, that she was outside “the norm of middle class women,” and that she was “a person of poor judgment” who was “loose with money.” Assuming, as does the majority, that defendant objected with sufficient specificity to preserve the issue, the trial court erred by admitting, at the guilt phase of defendant’s capital trial, evidence of how she spent the money she inherited from her murdered husband.

¶22The error, however, was harmless, because there was overwhelming evidence of defendant’s guilt. Three witnesses (Heidi Dougall, Celina Krall, and Marsha Hutchison) testified that defendant told them that she wanted her husband dead, and another witness (David Navarro) testified that defendant had solicited him to kill her husband. Defendant’s close friend, Anne Hambly, testified that defendant told her she had persuaded James Bernstein to hire a “hit man” to kill defendant’s husband. Defendant also told Hambly that she later had Bernstein killed because she was afraid that he would tell the police of her involvement in her husband’s death. Paul Gaul, who killed Bernstein with the assistance of an accomplice, testified that defendant had asked him to commit the murder because Bernstein was blackmailing her by threatening to tell the police of her role in her husband’s murder. Given the strength of this evidence, it is not “reasonably probable” (People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243]) that the outcome of defendant’s trial would have been different if the trial court had excluded the evidence of how she spent the money she inherited after his death.1

¶23I now turn to the prosecutor’s biblical references at the penalty phase.

¶24II

¶25In her closing argument to the jury, the prosecutor said: “Genesis chapter 9, verse 6; Exodus chapter 21, verse 12; and the Book of Numbers chapter 35, verse 31 all repeat the same basic message: ‘Whoever sheds the blood of man, by man shall his blood be shed, for in his image did God make man.’ ” Defendant raised an objection, which the trial court overruled. The prosecutor then continued, “ ‘He who fatally strikes a man shall be put to death.’ [][] *145Exodus even answers a common defense argument that only God can take a life. [][] ‘It is not [szc] man, not God, who is to execute murders. By man shall his, the murderers [szc] blood be shed.’ [f] Although some look to the New Testament and quote, ‘Vengeance is mine, I will repay saith the Lord,’ in the very next chapter, Romans, Paul calls for capital punishment by saying, ‘The ruler bears not the sword ... in vain for he is the minister [of] God, a revenger to execute wrath upon him that doeth evil.’ ”

¶26The prosecutor followed those biblical quotations with these comments: “Now that’s enough said. And please understand I’m not telling you to use the Bible. I’m telling you not to use the Bible. The Bible is not the law of the land. H[] I only read those brief quotes for any of you who may have personal reservations against the death penalty because you believe that it is against your own beliefs, [f] Please don’t misunderstand because there was no other reason for reading those sections other than that, [f] Ladies and gentlemen, ... a free society requires of its citizen jurors strength and vigilance and courage and resolve in making the tough decision that is before you now. []Q It is much easier to beg you to spare a life than to ask you to take a life. That’s because those of us who live within the norms of society have a natural compassion, a natural reference [íz'c] for life. [][] It would be very easy for you to . . . walk away, to say that [defendant] will spend the rest of her life in prison. [][] But there is a greater principle here. If you believe that the death penalty is appropriate, then to walk away and to take the easy road because it was convenient or because it’s easy to live with, I submit you are ignoring the laws of the land that capital punishment should be applied when you decide it is appropriate.” (Italics added.)

¶27Defendant argues that the prosecutor’s biblical references violated her rights under the Sixth, Eighth, and Fourteenth Amendments to the federal Constitution. The majority does not resolve the issue. It simply concludes that even if improper, the prosecutor’s argument did not prejudice defendant. The majority explains: “The prosecutor’s biblical argument was only a small part of her argument, the bulk of which focused on arguing to the jury why it should find that the statutory aggravating factors outweighed the mitigating factors.” (Maj. opn., ante, at p. 134.)

¶28If I were to find that the prosecutor’s biblical references in this case were improper, I would conclude that they prejudiced defendant. The majority is wrong when it says that a prosecutor’s improper reliance on religious authority is harmless if it is only a “small part” of the prosecutor’s closing argument. I explained why in my dissenting opinion in People v. Slaughter (2002) 27 Cal.4th 1187 [120 Cal.Rptr.2d 477, 47 P.3d 262], There, this court used reasoning identical to that used by the majority here to find that the prosecutor’s improper biblical references in his closing argument at the *146penalty phase of a capital case were harmless. I dissented, with these comments: “The majority’s assertion that the prosecutor’s improper argument must be considered harmless because it was ‘part of a longer argument that properly focused upon the factors in aggravation and mitigation’ . . . makes little sense. Under that logic, prosecutors may freely refer to biblical authority when making their penalty arguments to juries in capital cases, secure in the knowledge that this court will never reverse a resulting death judgment for this misconduct, provided only that the prosecutors also present an argument focusing on the statutory aggravating and mitigating factors. Appeals to divine authority in jury arguments in capital cases are prejudicial when jurors for whom the aggravating and mitigating factors appear closely balanced use religious considerations to resolve their doubts, as the prosecutor’s improper argument invites them to do.” (Id. at p. 1228 (dis. opn. of Kennard, J.); see also People v. Vieira (2005) 35 Cal.4th 264, 309 [25 Cal.Rptr.3d 337, 106 P.2d 990] (dis. opn. of Kennard, J.).) The majority here employs the same faulty logic used by the majority in Slaughter.

¶29Because, in my view, an impermissible reliance on religious authority by the prosecutor may be prejudicial even when, as here, the biblical references are only a short part of the prosecutor’s argument, I must decide whether the prosecutor’s biblical references in this case were improper. On point here is this court’s decision in People v. Hughes (2002) 27 Cal.4th 287 [116 Cal.Rptr.2d 401, 39 P.3d 432], in which I joined. There the prosecutor, as in this case, quoted several biblical passages supportive of the death penalty in his closing argument at the penalty phase of a capital trial. But he went on to explain to the jury that he was not trying to argue that the Bible provided a basis for imposing the death penalty, but only to show that the Bible was “ ‘not an impediment to imposing the death penalty.’ ” (Id. at p. 391.) This court held the comments were permissible: “The prosecutor’s references were part of a straightforward argument that jurors should not be persuaded either way by biblical and religious teachings, and that the ultimate penalty decision was an individual determination. The prosecutor did not imply or suggest that another, higher law should be applied instead of the court’s instructions . . . .” (Id. at p. 392.)

¶30“Because any use of biblical references in argument must be carefully scrutinized, cautious prosecutors will choose to avoid such references” (People v. Harrison (2005) 35 Cal.4th 208, 248 [25 Cal.Rptr.3d 224, 106 P.3d 895]); “[a] prosecutor who mentions the Bible in closing argument runs a grave risk that a reviewing court will . . . reverse the defendant’s conviction” (ibid.). *147But here, as in Hughes, the prosecutor’s biblical references “were part of a straightforward argument that jurors should not be persuaded either way by biblical and religious teachings . . . {People v. Hughes, supra, 27 Cal.4th at p. 392), but should instead base their penalty decision on “the laws of the land.” Thus, under this court’s decision in Hughes, the prosecutor’s argument did not violate defendant’s constitutional rights.

¶31Appellant’s petition for a rehearing was denied September 21, 2005, and the opinion was modified to read as printed above. George, C. J., did not participate therein.