People v. McDowell

¶1I concur in affirming the judgment of guilt and the finding of special circumstances.

¶2I dissent from the imposition of the death penalty. The record demonstrates that 11 jurors erroneously thought that most of defendant’s character and background evidence could not be considered in determining penalty. When a jury asks a question showing that it does not understand an instruction, the court must not simply repeat the instruction which the jury has failed to understand. To fail to clarify the instruction is to assure that the jury will persist in its misunderstanding. The court’s failure to explain that defendant’s character and background evidence was relevant to the penalty determination is an error which alone would require reversal in this case.

¶3In addition, the prosecutor’s argument to the jury further misled the jury as to its function. He asked the jury to use a formula characterizing the absence of evidence of mitigating factors as aggravating, and asked the jury to place particular weight on the absence of evidence of mental defect and diminished capacity, as an aggravating factor. The prosecutor stressed that the law required the imposition of the death penalty if aggravating factors (which he had inflated) outweighed mitigating factors. Thus the jury not only ignored large portions of the defendant’s mitigating evidence, but was led to grossly overestimate the case in aggravation, and to feel that the death penalty was mandatory in the circumstances. There is no principled basis for affirming this death judgment.

¶4I.

¶5A jury deciding whether to impose the death penalty may consider evidence that the defendant proffers about his character and background, (Lockett v. Ohio (1978) 438 U.S. 586, 604 [57 L.Ed.2d 973, 989-990, 98 S.Ct. 2954].) Our high court has recently reaffirmed that a jury in a capital case may not be precluded from considering any character or background evidence, or other relevant evidence, which is offered in mitigation. (Mills v. Maryland (1988) 486 U.S. 367 [100 L.Ed.2d 384, 108 S.Ct. 1860], citing Eddings v. Oklahoma (1982) 455 U.S. 104, 110 [71 L.Ed.2d 1, 8, 102 S.Ct. 869]; Lockett v. Ohio, supra,438 U.S. at p. 604 [57 L.Ed.2d at pp. 889-890.) In Mills, the court vacated a judgment of death because of the risk that the *580jury understood a standard verdict form and accompanying instructions to mean that members of the jury could not consider any mitigating circumstance unless the jury unanimously agreed that the circumstance had been shown. The court had no extrinsic evidence, only the verdict form and the trial judge’s instruction's. Yet the court found that it would be quite possible for a reasonable juror to interpret the verdict form to require unanimity, and that this risk required that the judgment be vacated. (Mills v. Maryland, supra,486 U.S. at pp. _ - _ [100 L.Ed.2d at pp. 397-399].)

¶6Normally, as in Mills, we have only circumstantial evidence on the question whether the jury understands that the defendant’s character and background evidence is relevant to its penalty determination. We consider whether the instructions were clear or ambiguous, conceding that instructions in the terms of Penal Code section 190.3 are ambiguous (People v. Easley (1983) 34 Cal.3d 858, 878, fn. 10 [196 Cal.Rptr. 309, 671 P.2d 813], and we inquire whether the prosecutor may have misled the jury in argument (California v. Brown (1987) 479 U.S. 538, 546 [93 L.Ed.2d 934, 943, 107 S.Ct. 837], conc. opn. of O’Connor, J.)

¶7All that careful parsing of the evidence is totally unnecessary in this case. The jury put it on the record that 11 of the jurors thought that most of defendant’s mitigating character and background evidence could not be used in determining penalty. The court did nothing to dispel this misunderstanding.

¶8After nine hours of deliberation the jury sent the following note to the trial court: “Direction. We have an 11 to 1 vote for death. The one juror empathically [sic] feels her mitigating circumstances are equal to the aggravating circumstances. The other 11 jurors do not all agree with the one juror[’]s mitigating circumstances as all being either testimony or evidence that should be.considered. Please advise which [of the] following circumstances can be considered mitigating circumstances. [if] 1. Inadequate or insufficient psychiatric help. [if] 2. Love/hate relationship with father/mother. [if] 3. Daily extreme mental and physical abuse by father, also witness to daily physical abuse to mother and siblings, [if] 4. Religious extremes confused defendant. [if] 5. Confusing sexual more’s [sic ] at home (incest), with mother condoning or aware of incest/abuse. [if] 6. Accused of death of favorite sister, [if] 7. Stress of divorce from family, [if] 8. Rejection of mother’s love during teen years, [if] Thank you.”

¶9The majority say that the court could not interpret the evidence for the jury, though it “could have explained to the jury that it was free to consider any aspect of defendant’s background or character which defendant offered as a mitigating circumstance, and that some, if not all, of the listed factors, *581reasonably could fall within that category.” (Maj. opn., ante, at p. 578.) Of course, this is precisely what the court should have done. A jury which does not believe that defendant’s character and background evidence is relevant to determining penalty, as the majority of this jury did, has gravely misunderstood one of the basic elements of its task. It is of paramount importance that the court find language to convey to the jury, as the standard instruction obviously did not, that it is to consider defendant’s mitigating evidence.

¶10Instead the court here redirected the jury to the instructions it had already given. It instructed the jury that there were two relevant instructions. One listed the mitigating and aggravating factors. The other stated that one mitigating circumstance may outweigh several aggravating circumstances, and vice versa, depending on the weight to which the jury thought the circumstance was entitled. But the jury’s very question demonstrated it did not understand these instructions. There is no point in reiterating language which has failed to enlighten the jury. There is no basis for concluding, as the majority opinion does, that the court’s response adequately informed the jury regarding the evidence it was permitted to consider in mitigation. There remains not only a risk but a certainty that the jury failed to understand its constitutional obligation to consider all of defendant’s mitigating evidence.

¶11II.

¶12Not only did this jury misunderstand the relevance of defendant’s evidence in mitigation, it was also led to misunderstand the weight and persuasiveness of the case in aggravation. If we examine the instructions and- the arguments of the prosecutor, we find a serious risk that the jury counted the lack of evidence of mitigation as evidence in aggravation and that it thought that the death penalty was mandatory if aggravating circumstances outweighed mitigating circumstances. The likely result is that the jury seriously misunderstood its function. (See People v. Davenport (1985) 41 Cal.3d 247, 289-290 [221 Cal.Rptr. 794, 710 P.2d 861] [absence of evidence on a statutory mitigating factor is not to be used in aggravation]; People v. Brown (1985) 40 Cal.3d 512 [220 Cal.Rptr. 637, 709 P.2d 440], revd. on other grounds sub nom. California v. Brown, supra, 479 U.S. 538 [93 L.Ed.2d 934, 107 S.Ct. 837]; People v. Allen (1986) 42 Cal.3d 1222, 1277 [232 Cal.Rptr. 849, 729 P.2d 115] [jury must understand that apparently mandatory sentencing instruction actually requires individual determination of appropriateness of death penalty].) We should reverse the death penalty judgment even if we did not know for a fact that 11 jurors misunderstood what evidence could be considered in mitigation.

¶13As the majority concede, absence of evidence of a mitigating factor cannot be considered an aggravating factor. (People v. Davenport, supra,41 *582Cal.3d 247, 289-290.) The prosecutor here placed all the factors in a formula, listing only “age” and “sympathy” as mitigating, and emphasizing- the absence of evidence of the other mitigating factors as circumstances in aggravation. He asked the jury to place particular aggravating weight on the absence of evidence of mental defect or diminished capacity. Since the majority decide that the Davenporterror was harmless here, I do not take seriously the majority’s inconsistent dicta in which they hint that they should not reach the issue they decide.1

¶14The Davenporterror was not harmless. I reject the notion that anything defense counsel said cured the harm caused by the prosecutor’s mischaracterizations. The majority maintain that what defense counsel said “clarified” the prosecutor’s remarks. On the contrary, it contradicted them. We cannot be certain whom the jury believed, but I find it highly likely that the jury would be influenced by the prestige of the prosecutor’s public office to follow the prosecutor’s characterization. (See People v. Talle (1952) 111 Cal.App.2d 650, 677 [245 P.2d 633]; see also White, The Death Penalty in the Eighties (1987) p. 97.) Further, the verdict shows that defense counsel’s arguments lacked persuasive power.

¶15The majority do not rely on defense counsel’s arguments alone, however. They find the error nonprejudicial because “[t]he prosecutor merely mischaracterized as ‘aggravating’ the absence of certain mitigating factors.” (Maj. opn., ante, at p. 574.) This is like saying that Davenporterror is nonprejudicial because it was merely Davenporterror.

¶16The majority find further reassurance in that despite what the prosecutor said, “the jury was well aware of the underlying facts, and was free to place whatever weight it wished upon these facts.” (Maj. opn., ante, at p. 574.) This is true, but it proves nothing. The point of Davenporterror is that it allows the jury to place weight on a nonfact—the absence of evidence. The jury may be aware of the facts, yet be misled into thinking that the absence of evidence in mitigation makes the aggravating facts of which they are aware weightier.

¶17It is settled that there is a danger that an instruction in the apparently mandatory language of Penal Code section 190.3 will cause jurors to think that they must weigh aggravating against mitigating circumstances without *583regard to their personal view as to the appropriate penalty, and impose the death penalty despite a personal conviction that the penalty is not appropriate in the particular case. (People v. Brown, supra, 40 Cal.3d 512; People v. Allen, supra,42 Cal.3d 1222, 1277.) This danger becomes even more serious when the prosecutor gives false weight to the case in aggravation by arguing that lack of evidence in mitigation should be weighed in aggravation.

¶18The prosecutor tried to persuade the jury that the death penalty was mandatory in this case. He stressed the mandatory terms used by the standard jury instruction, and claimed that once the jury had weighed aggravating against mitigating factors, its decision would be made. He emphasized that the process was automatic whichever way it turned out, so that if mitigating factors predominated, the verdict must be life in prison, but that if aggravating factors predominated, the verdict must be death. He reviewed the evidence relating to each factor, arguing the absence of evidence of mental disease or diminished capacity as particularly worthy of consideration as an aggravating factor, and then produced a formula in which each statutory factor was designated aggravating except that “age” and “sympathy” might be considered in mitigation. Under his formula, he claimed that the aggravating circumstances far outweighed the mitigating, and that for this reason, “the law says that you shall impose death.”

¶19I agree with the majority that with the court’s supplemental instruction that one mitigating circumstance can outweigh several aggravating circumstances, and with the prosecutor’s argument to the same effect, there is no danger that the jury simply counted up the factors and imposed death because there were more factors in aggravation. However, I cannot agree that this jury was made to understand that once it balanced the factors, it should impose the penalty that seemed normatively appropriate. The trial court’s instruction that the jury might assign whatever weight it chose to the sentencing factors did not inform the jury that after they weighed the factors, they still had to determine what penalty was appropriate. The fact that the prosecutor used the word “appropriate” twice during argument is hardly conclusive. It is true that the prosecutor reminded the jury of the high responsibility of its task, and referred to each juror’s statement on voir dire that he or she would vote to impose the death penalty on defendant if it were an appropriate case. But then the prosecutor told the jurors how to determine if it were an appropriate case. He told them to weigh the factors and impose death if aggravating factors outweighed mitigating. He made the aggravating factors look weightier by arguing that lack of evidence of a factor in mitigation could be aggravating. He told them that they could not impose the penalty of life without possibility of parole if they determined that aggravating circumstances outweighed mitigating and he explained that this was because of the mandatory wording of the death penalty stat*584ute. Nothing in the court’s instructions dispelled this erroneous characterization.

¶20III.

¶21I am convinced that the majority of the jury misunderstood the law and thought that most of defendant’s character a.nd background evidence was irrelevant. This alone should cause us to reverse the penalty judgment. But not only did the jury disregard most of the evidence in mitigation, the prosecutor erroneously inflated the weight of the evidence in aggravation, and mischaracterized the jury’s function in selecting the appropriate penalty. We should not countenance a distortion of the jury’s function which allows it to disregard the evidence in mitigation, add false weight to the evidence in aggravation, and then select the death penalty under the misapprehension that the inflated list of aggravating factors gave it no other choice. I would reverse the death judgment.

¶22Mosk, J., concurred.

¶23A petition for a rehearing was denied November 10, 1988, and the opinion was modified to read as printed above.