A jury adjudged defendant Tiequon Aundray Cox guilty of the first degree murders of Ebora Alexander, Dietria Alexander, Damon Bonner, and Damani Garner (Pen. Code, § 187), and found true a special circumstance allegation that he committed multiple murders (Pen. Code, § 190.2, subd. (a)(3)).
I. FACTS
A. Guilt Phase Evidence
The murders occurred August 31, 1984, in the home of Ebora Alexander, preceded by the following events: About 5:30 or 6 that morning, Darren Williams and Horace Burns arrived at the residence of Ida Moore, where Lisa Brown was also present. Williams, an acquaintance of both women, used the telephone. He then asked Moore for a ride, which she agreed to furnish, and told Burns to go pick up someone; Burns returned five or ten minutes later with defendant.
The group left in Moore's van, with Moore driving, Brown in the passenger seat, and the three men in the back. After stopping for some gasoline, which Moore had to pay for, Williams directed them to 59th Street in Los Angeles and began looking for an address he had written on a piece of paper. When he had located the house in question, he told Moore to park down the street and leave the engine running. After they parked, Brown heard one of the men say they were going "to kill everybody in the house." Williams told Burns to stay behind while he and defendant got out and walked toward the Alexander residence.
Brown did not see any weapons at that time. However, Moore had seen "a big gun" in the back of the van when they stopped for gas; defendant
Several other persons witnessed relevant events. Lashawn Driver lived one or two doors away on the opposite side of the street. About 7:30 a.m., she was returning home when she saw two men enter the Alexander home and then heard approximately five gunshots. After one of the men came out, she heard another series of shots. The second individual, whom she identified as defendant, then left the house carrying a rifle. Both men went down the street.
Venus Webb also lived across the street. On the morning of the murders, she heard shooting and went to investigate. When she looked out her front window, she saw defendant leaving the Alexander house and walking rapidly toward a van, which pulled around the corner at a fast pace and disappeared. Webb later identified defendant at a live lineup.
Ebora Alexander's 14-year-old son Neal and her grandson Ivan Scott were in the house when Williams and defendant entered. Neal awoke when he heard a scream and the sound of a shot. He saw a man standing in his sister Dietria's room holding a rifle. The man was facing the opposite direction toward his sister's bed; Neal jumped on his back and started fighting with him. When the man hit him on the face, Neal ran through the back door. Other than family members, he saw no one else in the house. Ivan also awoke to gunshots and ran into a closet. From that vantage, he saw his uncle Neal run down the hallway and heard an ensuing struggle. He also glimpsed a man he could not identify, who was carrying a rifle.
Upon returning to the van, Williams and defendant told Moore to drive away and eventually had her stop at Vermont Avenue and Gage Street, where all three men got out and entered a building known as the Vermont Club. One or two hours later, Moore saw Williams at the home of James Kennedy, where Williams gave her $50 to purchase some personal items for him and to pay her for the gas. Later in the day, she saw him again and observed he was wearing new clothes and jewelry. About 9 a.m., Brown received a telephone call from Williams, who directed her to bring his car to the Vermont Club. When she arrived, defendant was also there; she saw someone hand him a rifle over a fence, which he put in the trunk of the car. Brown drove defendant to an apartment building, where he took the rifle
James Kennedy was a personal friend of defendant, Williams, and Burns through gang association. On the morning of August 31, defendant brought him a semiautomatic .30-caliber carbine wrapped in a jacket and told him to destroy it. He also asked Kennedy to have his sister wash the jacket because it had gunpowder on it. Kennedy took the jacket to his sister but did not destroy the rifle, instead putting it in some bushes near his residence. On September 27, Kennedy was the subject of a narcotics investigation during which he revealed the location of the weapon to law enforcement officers. After defendant's arrest, an acquaintance, Cassandra Haynes, spoke with him in jail. Defendant asked her if the police had found the gun he gave to Kennedy, but she did not know for certain.
Shortly after the shootings, the police were summoned to a scene of horror at the Alexander house, where they found the bullet-riddled bodies of 57-year-old Ebora, her 23-year-old daughter Dietria, and 2 of her grandsons, 8-year-old Damon Bonner and 10-year-old Damani Garner. Ebora had been sitting at her kitchen table drinking coffee when she was killed; Dietria, Damon, and Damani were in a bedroom, still in their beds. The coroner determined they had died of gunshot wounds to the head or body; Ebora suffered one wound that caused part of her brain tissue to be blown away. In the course of their investigation, police retrieved empty shell casings and spent bullets from the vicinity of each body. Ballistics testing established they all came from the same semiautomatic .30-caliber carbine defendant gave James Kennedy.
The police investigators also lifted a latent palm print from a trunk located in the bedroom where the younger victims had been sleeping. After comparing it with an exemplar, two experts concluded only defendant could have made the print. Ebora's son, Kermit Alexander, and two of her daughters, Geraldine Alexander (Damani's mother) and Daphine Bonner (Damon's mother), testified they had never seen defendant in their mother's house. Daphine Bonner also indicated Dietria had purchased the trunk for her bedroom approximately two and a half weeks before the shootings.
At the penalty phase, the prosecution presented evidence of two robberies defendant was involved in as a juvenile. In May 1981, Rosalyn Lebby was rousted from her car by defendant and another teenager as she waited for her young son after school. Impliedly threatening Lebby with a gun, defendant took her vehicle and led police on a high-speed chase for half an hour through city streets, stopping only when he hit a telephone pole. The police recovered a .32-caliber revolver from the driver's side of the car.
One month earlier, defendant and a companion accosted three junior high school students. He hit two of them with his fist and a piece of mop handle and demanded money from all three.
The defense offered evidence of defendant's upbringing and school environment. He had been virtually abandoned at an early age by his mother, who had a drinking problem and had gone to prison for bank robbery. He and his younger brother and sister had been raised by his 65-year-old great-grandmother, who he felt was somewhat strict. For that reason he ran away from her house at the age of 14 and went to live with his grandmother. He had very little contact with his father.
One of defendant's junior high school teachers described him as skilled in athletics and capable of achieving good grades. However, peer pressure from the neighborhood gangs was a serious distraction to male students, particularly those who did not have strong role models. One of the junior high school administrators also felt defendant had been a good student until it appeared he had joined a local gang. He then began having behavior problems, which led to his expulsion.
Defendant's great-grandmother, grandmother, sister, brother, and teacher all testified they cared for him and wished to see him live. He had been good to his brother and sister and warned them to stay away from gangs. His great-grandmother stated she did not believe defendant was guilty because he had told her he did not hurt anyone.
Joey Upland, formerly a nurse at San Quentin Prison, described the living conditions of those sentenced to life imprisonment without possibility of parole. They are subject to frequent lock downs during which they are confined to the small cells they must share with another prisoner. Life in prison is very violent and without many amenities such as regular showers and laundry exchange.
A. Witherspoon/Witt Error
The court initially conducted a sequestered voir dire to determine whether those in the venire could perform their duties irrespective of their attitudes toward the death penalty. (See People v. Hovey (1980) 28 Cal.3d 1, 80-81 [168 Cal.Rptr. 128, 616 P.2d 1301].) The court explained to each prospective juror the trial procedure by which the jury would first determine defendant's guilt and the truth of the special circumstance allegation. Only if both issues were resolved against defendant would the question of penalty arise.
Next, the court posed two standard inquiries: "Are your feelings about the death penalty such that you could never vote for the death penalty regardless of the evidence presented?"; and "Are your feelings about the death penalty such that you would always vote for the death penalty regardless of the evidence presented?" Depending upon the responses, the court or counsel asked follow-up questions to clarify the prospective juror's attitude and ability to conform to the law as instructed. Eleven venirepersons were excused for cause due to their expressed inability to impose capital punishment under any circumstances. Although he raised no objection at the time, defendant challenges these rulings as violative of Witherspoon v. Illinois (1968) 391 U.S. 510 [20 L.Ed.2d 776, 88 S.Ct. 1770].
In Witherspoon, the United States Supreme Court approved a state's authority to exclude for cause all prospective jurors "who made unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant's guilt." (391 U.S. at p. 522, fn. 21 [20 L.Ed.2d at p. 785].)
Viewing the voir dire in its entirety, we find the record sufficient to support the trial court's rulings. Defendant either bases his criticisms on excerpted portions of the voir dire, isolating particular answers out of
B. Denial of Challenge for Cause to Prospective Juror Deaton
C. Prosecutor's Use of Peremptory Challenges To Eliminate Jurors Reluctant to Impose Death Penalty
D. Hardship Excuses
During voir dire, the court inquired whether a protracted trial would pose any financial burden. Several prospective jurors explained that they or their employer would suffer some significant hardship under such circumstances. The court then either excused them outright or did so after some verification from the employer.
We have previously addressed a cognate argument and found it wanting: "Claims of denial of a fair cross-sectional jury are analyzed by ascertaining whether a cognizable class has been excluded. [Citation.] Even assuming that only poor persons were given hardship exclusions, a fact not proven here, persons with low incomes do not constitute a cognizable class. [Citations.]" (People v. Johnson, supra, 47 Cal.3d at p. 1214.) By a parity of reasoning, whether or not the court had a "blanket policy" of granting hardship excuses to all those not reimbursed by their employers, defendant has failed to identify a constitutionally impermissible basis on which these prospective jurors were excluded.
III. GUILT PHASE ISSUES
A. Physical Restraint of Defendant During Trial
Before discussing defendant's various contentions concerning the trial court's decision to have him physically restrained during trial, some factual background is in order:
Trial was set for September 9, 1985. On that day, after the master calendar court granted a defense continuance, the following exchange occurred:
"[DEFENSE COUNSEL]: Your Honor, Mr. Cox is shackled as you can see and I know he's never been a security problem.
"THE COURT [JUDGE MUNOZ]: I will make an order he not be shackled any other time he has an appearance in this courtroom."
At this point, defense counsel requested an in camera hearing at which he disclosed the following:
"[DEFENSE COUNSEL]: Your Honor, first I would say that this does not constitute a conflict because any attorney representing Mr. Cox would be privy to this information. [¶] In our investigation of the case there — we think that there is some possibility that there may be an escape attempt in this case.
"THE COURT: Yes.
"[DEFENSE COUNSEL]: We would — we're against full shackles but I think there should be some — like a handcuff to a chair I think would be sufficient so the jury can't see.
".... .... .... .... ....
"THE COURT: For the safety of everyone, then?
"[DEFENSE COUNSEL]: For the safety of everyone. [¶] As an officer of the court, I feel that it's my duty to — in fact, we originally were going to ask for the 134 courtroom. But I don't really think that's necessary if you have adequate bailiff support, searching.
"THE COURT: Okay.
"[DEFENSE COUNSEL]: It's something, though, that should not be looked at lightly.
"THE COURT: Okay. All right. [¶] I will take that measure...."
Defendant apparently was handcuffed to his chair during that day's proceedings. The next day counsel indicated, "Your Honor, Mr. Cox is — the record should reflect that he is handcuffed to the chair. It is very uncomfortable. We would ask that that be removed or some —" to which the court responded, "Well, I'm not going to have it removed."
A day or so later, defendant was brought to court wearing some kind of leg shackles. In answer to counsel's inquiry, the court stated, "At least for
1. Trial Court's Exercise of Discretion
This conclusion does not compel reversal, however. The record makes equally clear that any error did not impair the right to a fair trial.
The record in this case depicts a considerably different picture.
Under such circumstances, we fault only the failure to establish on the record a manifest need for restraints; the procedures implemented could not have influenced either the guilt or penalty verdict. "[A]ny error was clearly harmless." (People v. Allen (1986) 42 Cal.3d 1222, 1264 [25 L.Ed.2d 353,
2. Defendant's Absence From In Camera Hearing
Defendant also asserts he was improperly excluded from the in camera hearing because his presence was "required in order to protect [his] interests, [and] to assure him a fair and impartial trial...." (People v. Jackson (1980) 28 Cal.3d 264, 310 [168 Cal.Rptr. 603, 618 P.2d 149]; see generally §§ 977, subd. (b), 1043, subd. (a).) This argument simply recasts defendant's fundamental complaint that the trial court abused its discretion in ordering him shackled. Under the facts, we need not resolve the question of whether the presence of an accused at such a hearing "bears a `reasonably substantial relation to the fullness of his opportunity to defend against the charge.' [Citation.]" (In re Lessard (1965) 62 Cal.2d 497, 506 [42 Cal.Rptr. 583, 399 P.2d 39].) Any error in the court's decision was harmless and remains so irrespective of defendant's absence from some portion of the proceedings.
3. Defense Counsel's "Conflict of Interest"
During the in camera hearing, defendant's attorney indicated, "[T]his does not constitute a conflict because any attorney representing Mr. Cox would be privy to this information. [¶] In our investigation of the case there — we think that there is some possibility that there may be an escape attempt in this case."
"In order to establish a violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer's performance." (Cuyler v. Sullivan (1980) 446 U.S. 335, 348 [64 L.Ed.2d 333, 346-347, 100 S.Ct. 1708], fn. omitted.) To meet this burden, Sullivan mandates a defendant "show[] that his counsel actively represented conflicting interests"; "the possibility of conflict is insufficient to impugn a criminal conviction." (Id., at p. 350 [64
Defendant relies on cases in which potential or actual conflict resulted from the defense attorney's simultaneous representation of a codefendant or witness whose position relative to the charges was adverse to the defendant's interests. (See People v. Easley (1988) 46 Cal.3d 712, 720-724 [250 Cal.Rptr. 855, 759 P.2d 490] [defense counsel also represented owner of property destroyed by fire who testified for prosecution regarding defendant's participation in arson alleged as violent-crime special circumstance]; People v. Mroczko, supra, 35 Cal.3d at pp. 103-108 [same attorney represented defendant and codefendant who had antagonistic defenses because of differing degrees of culpability]; see also Wheat v. United States (1988) 486 U.S. 153, 155-158 [100 L.Ed.2d 140, 146-148, 108 S.Ct. 1692] [same attorney represented defendant and prosecution witness whom attorney would be precluded from effectively cross-examining; defendant not permitted to waive conflict]; Cuyler v. Sullivan, supra, 446 U.S. at p. 350 [64 L.Ed.2d at p. 348] [defense attorneys rested defendant's case to avoid exposing witnesses who might later testify for codefendants they also represented; remanded for determination of actual conflict and absence of tactical decision].)
Parenthetically, we also observe that the American Bar Association Code of Professional Responsibility permits an attorney to reveal "[t]he intention of his client to commit a crime and the information necessary to prevent the crime." (DR 4-101(C)(3); see also ABA Model Rules Prof. Conduct, rule 1.6(b)(1) [attorney may reveal confidential information "to prevent the client from committing a criminal act ... likely to result in imminent death or substantial bodily harm"]; cf. Evid. Code, § 956 [no attorney-client privilege "if the services of the lawyer were sought or obtained to enable or aid
4. Failure to Instruct
In People v. Duran, supra, we advised that "when the restraints are concealed from the jury's view, this instruction should not be given unless requested by defendant since it might invite initial attention to the restraints and thus create prejudice which would otherwise be avoided." (16 Cal.3d at p. 292, fn. omitted; People v. Allen, supra, 42 Cal.3d at p. 1265, fn. 25; see also People v. Sheldon, supra, 48 Cal.3d at p. 946.) Having determined the record contains no evidence the jury saw defendant's shackles, we conclude the court had no duty to instruct on the matter in the absence of a specific request.
B. Ineffective Assistance of Counsel5
Defendant makes numerous assertions of ineffective assistance of counsel. Before addressing them individually, we review the basic principles that inform and guide our assessment of these issues on appeal:
Finally, "there is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order [set forth above] or even to address both components of the inquiry if the defendant makes an insufficient showing on one. In particular, a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies." (Strickland v. Washington, supra, 466 U.S. at p. 697 [80 L.Ed.2d at p. 699].)
1. Failure to Challenge Jury Venire
In Williams v. Superior Court (1989) 49 Cal.3d 736 [263 Cal.Rptr. 503, 781 P.2d 537], we determined "that the appropriate definition of community for cross-section analysis is the judicial district." (Id., at p. 739, fn. omitted.) The relevant statistics in Harris related to "Long Beach Superior Court jury panels from May 5 through August 15, 1979[,]" i.e., the Long Beach Judicial District. (People v. Harris, supra, 36 Cal.3d at p. 46.) Defendant's trial took place in the Los Angeles Judicial District; hence, the result in Harris is irrelevant. More to the point, "[t]here is no indication in the record that defendant was either deprived of a representative jury or that counsel's failure to challenge the jury venire was unreasonable within the meaning of either Pope, supra, ... or [People v.] Fosselman [(1983) 33 Cal.3d 572]...." (People v. Moore (1988) 47 Cal.3d 63, 86 [252 Cal.Rptr. 494, 762 P.2d 1218].) In the absence of such data, we are unable to determine whether he could have met his burden of showing "that the representation of the excluded group[s] in venires from which juries [were] selected [was] not `fair and reasonable in relation to the number of such persons in the community.'" (Williams v. Superior Court, supra, 49 Cal.3d at p. 746, quoting Duren v. Missouri, supra, 439 U.S. at p. 364 [58 L.Ed.2d at p. 587].) Without some basis for evaluating the likely success of a motion to quash, we cannot conclude defendant suffered any prejudice.
2. Death Qualification Voir Dire7
Prior to commencement of the sequestered voir dire, the defense attempted to limit substantially the nature and extent of inquiry into prospective jurors' general attitudes toward the death penalty. Counsel proffered the following rationale for the requested restrictions: When the United States Supreme Court decided Witherspoon (1969), popular opinion was essentially evenly divided on the death penalty, with a slight majority opposed. (See Witherspoon v. Illinois, supra, 391 U.S. at p. 520, fn. 16 [20 L.Ed.2d at p. 783].) At the time of defendant's trial (1985), however, that sentiment had shifted dramatically; according to counsel's statistics, 80 percent then favored capital punishment. (See also Gregg v. Georgia (1976) 428 U.S. 153, 181, fn. 25 [49 L.Ed.2d 859, 879, 96 S.Ct. 2909].) If the prosecutor were permitted to engage in extensive voir dire, he would be able easily to identify, and hence readily eliminate, all venirepersons who entertained some conscientious or religious scruples even if they otherwise affirmed their ability to follow the law and impose a death sentence. With each side having the same number of peremptory challenges, "just [as] a matter of percentages," the prosecution would be able to control the composition of the jury to include only those who, as a general proposition, favored the death penalty and to excuse those who did not, all contrary to the mandate of Witherspoon.
Counsel alluded to a capital case he had tried the previous year in which he felt this exact scenario had come to pass. While the court did not question the statistical basis for the motion, it was unconvinced of the underlying legal premises and indicated an intent to allow a moderate degree of inquiry by both sides. The defense subsequently questioned all prospective jurors but did not engage in "probing" inquiry except in response to some of the prosecutor's challenges for cause. Under the circumstances, we can reasonably infer the decision to pursue this course was a tactical choice to avoid revealing too much, thereby enabling the prosecutor to identify and excuse by peremptory challenge those who expressed scruples about imposing the death penalty.
We do not find this professional judgment ill-considered or strategically untenable. (See also People v. Lewis (1990) 50 Cal.3d 262, 289-290 [266 Cal.Rptr. 834,
3. Request to Have Defendant Shackled During Trial; Exclusion of Defendant From In Camera Hearing
As previously discussed, defendant did not suffer any impairment of his right to a fair trial by being physically restrained during the proceedings. Hence, any error in ordering the restraints or conducting the in camera hearing, whether on the part of the court or counsel or both, does not warrant reversal of either the conviction or sentence. (People v. Ledesma, supra, 43 Cal.3d at p. 217; cf. People v. Hamilton (1985) 41 Cal.3d 408, 424 [221 Cal.Rptr. 902, 710 P.2d 981] ["Although fault might be found with
4. Eliciting Testimony of Gang Affiliation
When offered by the prosecution, we have condemned the introduction of evidence of gang membership if only tangentially relevant, given its highly inflammatory impact. (See generally People v. Cardenas (1982) 31 Cal.3d 897, 904-905 [184 Cal.Rptr. 165, 647 P.2d 569]; see also Williams v. Superior Court (1984) 36 Cal.3d 441, 450, fn. 8 [204 Cal.Rptr. 700, 683 P.2d 699].) On the other hand, the defense may be pursuing a legitimate strategy in placing such information before the jury. For example, in People v. Frausto, supra, 135 Cal.App.3d 129, counsel had a "tactical reason" for not objecting to testimony of gangs and gang-related activity that "showed the victim and his companions in an unfavorable light because of the definite admission of the victim that he was a gang member in another gang's territory. As such, evidence of gangs was a twin sword which could be utilized by the defense in attacking the credibility of the victim." (Id., at p. 141.)
Here, we perceive a different but equally reasonable tactical decision in broaching the subject. As discussed more fully below, counsel's strategy was to forgo a strenuous guilt phase attack and focus the jury's attention at the penalty phase on possible lingering doubt over the identity of the actual killer. Crucial support for this theory lay in depicting defendant as a "follower," who operated under the influence and at the direction of more sophisticated and dominant gang members such as Darren Williams. During the penalty phase, counsel emphasized this point several times, alluding as well to the pervasive gang activity and attendant peer pressure in defendant's neighborhood while he was growing up. As a gang member himself, Kennedy's testimony enhanced the credibility of this argument. Upland's testimony also provided the foundation for the claim that life in prison without possibility of parole would be a "horrible punishment," sufficient to redress defendant's moral culpability.
Given the few viable appeals for clemency, we cannot fault the defense strategy or find any deficiency in its implementation. (Cf. People v. Miranda, supra, 44 Cal.3d at pp. 119-121 [decision not to introduce
5. Failure to Present Guilt Phase Defense or Argument as to Lesser Degree of Culpability
We do not find counsel's tactical choices constitutionally lacking under the circumstances. In resolving claims of ineffective assistance, we must "assess counsel's overall performance throughout the case" (Kimmelman v. Morrison (1986) 477 U.S. 365, 386 [91 L.Ed.2d 305, 326, 106 S.Ct. 2574]), evaluating it "from counsel's perspective at the time of the alleged error and in light of all the circumstances. [Citation.]" (Id., at p. 384 [91 L.Ed.2d at p. 325].) As experienced criminal attorneys, defense counsel pragmatically recognized that the evidence established the callously calculated murders of four innocent and unsuspecting victims for which defendant was directly responsible. In formulating a guilt phase strategy, they could reasonably have anticipated eventually having to conduct a penalty phase as well. Apparently, counsel determined the strongest defense against a death sentence was to portray Williams as the mastermind, who "orchestrated" the killings and "was in control" of events, while defendant, younger and more susceptible to peer pressure, simply accompanied him in a subservient role without prior knowledge of his precise purpose.
Although counsel could have made this argument at the guilt phase, the likelihood of reducing defendant's culpability for special circumstance murder was minimal given the compelling evidence of his involvement at least as an aider and abettor. Asking the jurors to pass upon this theory at an early stage may well have diluted its credibility and hardened their attitudes even before the penalty phase began. (See, e.g., People v. Jackson, supra, 28 Cal.3d at pp. 290, 295.) Indeed, had the jury rejected this theory as to guilt,
Through a selective reading of the record with considerable hindsight, defendant speculates a more favorable determination would have resulted from other possible courses; yet he has failed to establish as a demonstrable reality any professional lapse in the defense actually employed. (People v. Pope, supra, 23 Cal.3d at p. 426.) Lack of success does not reflect incompetence of counsel. (Strickland v. Washington, supra, 466 U.S. at p. 689 [80 L.Ed.2d at p. 694]; see also People v. Jackson, supra, 28 Cal.3d at pp. 288-289.) Indeed, as the court observed at the close of trial, "I believe on the evidence presented in this case the same outcome would result no matter what the trial strategy or tactics that might be employed by the defense." (See People v. Fosselman, supra, 33 Cal.3d at p. 582.)
As to whether certain witnesses should have been more rigorously cross-examined, such matters are normally left to counsel's discretion and rarely implicate inadequacy of representation. (See, e.g., People v. Robertson (1989) 48 Cal.3d 18, 41 [255 Cal.Rptr. 631, 767 P.2d 1109]; People v. Murphy (1972) 8 Cal.3d 349, 366-367 [105 Cal.Rptr. 138, 503 P.2d 594]; People v. Beagle (1972) 6 Cal.3d 441, 458 [99 Cal.Rptr. 313, 492 P.2d 1].)
C. Testimony of Family Members and Admission of Photographs of Victims in Life
Over defendant's objection at the guilt phase, the prosecution called as a witness Ebora Alexander's son Kermit, a former college and professional football player well known in Los Angeles. He identified life photographs of his mother and sister and also testified he had never seen defendant at his mother's house. Defendant also objected when the mothers of Damani Garner and Damon Bonner identified their sons from life pictures. They similarly denied ever seeing defendant at the Alexander residence.
Defendant's claim has limited merit: "There was no dispute as to the identity of the person[s] killed — evidently the only issue on which the
The trial court did not abuse its discretion in rejecting a proffered stipulation that none of the witnesses had seen defendant at their mother's house before the killings.
We also find no impropriety in permitting Kermit Alexander to testify. Whatever the witness's "celebrity" status, nothing in the record suggests any sympathy or other untoward influence engendered by his brief appearance and unemotional testimony. (See People v. Carrera (1989) 49 Cal.3d 291, 330-331 [261 Cal.Rptr. 348, 777 P.2d 121].) We decline to formulate a rule of admissibility premised on the extent to which a witness may or may not otherwise be known to the general public. (Cf. ibid. [declining to presume prejudice from testimony of murder victim's parent].)
D. Autopsy Photographs
"We have repeatedly stated that the court has wide discretion in determining the admissibility of photographs of a murder victim. [Citations.] We have previously held that a court may admit even `gruesome' photographs if the evidence is highly relevant to the issues raised by the facts.... [Citation.] However, when a defendant objects that the proffered evidence is more prejudicial that probative, the record must affirmatively show that the court weighed these factors, in order to allow proper appellate review of abuse of discretion claims. [Citation.]" (People v. Coleman, supra, 46 Cal.3d at p. 776.)
The trial court carefully considered the proffered justification in light of defendant's objections under Evidence Code section 352. Although one picture of Ebora "appear[ed] to be close to the concept of being factually gruesome," the court concluded, "I don't believe that [one] will inflame the passions of the jury. It is certainly not pretty [to] look at, nor are any of the other photographs pretty to look at, certainly, but I do believe that in light of the statement and the mode and manner that these killings occurred, and for the reasons stated by the prosecution, that they do have probative value that outweighs any prejudicial effect from them...."
Moreover, having examined the photographs, we agree with the trial court's assessment of their likely prejudicial impact and probative value. They "are relatively small and, although quite unpleasant to view, they are not exceptionally gruesome.... [U]nlike the photographs in some cases, these ... do not show the victim[s'] bodies in a badly decomposed condition [citation] or after they have been grossly disfigured during autopsy. [Citations.]" (People v. Allen, supra, 42 Cal.3d at pp. 1257-1258, fn. omitted; see also People v. Carrera, supra, 49 Cal.3d at p. 329.) The prosecutor also did not include some pictures apparently depicting Ebora Alexander's wound in more graphic detail. (See People v. Thompson, supra, 45 Cal.3d at p. 114; People v. Allen, supra, 42 Cal.3d at p. 1258.) Defendant has thus failed to demonstrate a manifest abuse of discretion in the admission of this evidence. (People v. Harris (1989) 47 Cal.3d 1047, 1095 [255 Cal.Rptr. 352, 767 P.2d 619].)
E. Instructions
1. Accomplices — CALJIC No. 2.11.5
Given the extent of Moore's and Brown's involvement, the trial court gave a full panoply of aiding and abetting and accomplice instructions.
Defendant correctly contends that, as a general proposition, the trial court should not have given CALJIC No. 2.11.5 under the circumstances. (But see, post, fn. 13.) As the Use Note reflects and this court has reaffirmed: "This instruction is not to be used if the other person is a witness for either the prosecution or the defense." (See People v. Marks (1988) 45 Cal.3d 1335, 1347 [248 Cal.Rptr. 874, 756 P.2d 260]; People v. Williams (1988) 45 Cal.3d 1268, 1313 [248 Cal.Rptr. 834, 756 P.2d 221].) Nevertheless, any error was not prejudicial.
The court also charged the jury not to single out any instruction (CALJIC No. 1.01) and to consider the full range of factors affecting credibility (CALJIC No. 2.20). In this context, we conclude "a reasonable juror would continue to act in accordance with the court's charge on accomplice testimony, but would simply refrain from discussing or giving any consideration to the separate issue why [Moore and Brown were] not being prosecuted in the present action or whether [they] had been or would be prosecuted...." (People v. Williams, supra, 45 Cal.3d at p. 1313; see People v.
Furthermore, we find no inherent contradiction in requiring the jurors to determine the accomplice liability of these witnesses in assessing the weight of their testimony and also directing them to ignore these factors in resolving defendant's guilt.
2. Aiding and Abetting — CALJIC No. 3.00
Under such circumstances, we require the defendant to request further instructional amplification or explanation as he deems necessary. "[E]rror cannot ... be predicated upon the trial court's failure to give [such amplification or explanation] on its own motion. [Citations.]" (People v. Anderson (1966) 64 Cal.2d 633, 639 [51 Cal.Rptr. 238, 414 P.2d 366].) Moreover, the failure to give a modified instruction could not have affected the outcome. The aiding and abetting theory finds no support in the record; the evidence substantially, if not overwhelmingly, established defendant as the actual perpetrator. Equally insubstantial was any evidence suggesting the assailants intended to scare rather than kill their victims. However, even if defendant meant only to encourage and facilitate an assault with deadly weapons, no reasonable jury would have concluded that the homicides were not a natural and probable consequence of such violence. (See Rose v. Clark (1986) 478 U.S. 570, 580-581 [92 L.Ed.2d 460, 472, 106 S.Ct. 3101]; see also People v. Dyer (1988) 45 Cal.3d 26, 65 [246 Cal.Rptr. 209, 753 P.2d 1]; People v. Jones (1989) 207 Cal.App.3d 1090, 1098 [255 Cal.Rptr. 464].)
In People v. Hendricks, supra, 43 Cal.3d 584, "[d]efense counsel presented no opening statement, cross-examined only a few of the prosecution's witnesses and those not extensively, ... called neither defendant nor any other witnesses, ... and made no closing argument."
"We implicitly recognized two points in Murphy. First, the Boykin-Tahl reasoning applies only when the defendant agrees to a submission procedure, such as a guilty plea or a submission on the preliminary hearing transcript, by virtue of which he surrenders one or more of the three specified rights. Second, there is no such surrender when the defendant undergoes — and thereby exercises his right to — a jury trial and has the opportunity to cross-examine the witnesses against him and to refuse to incriminate himself." (People v. Hendricks, supra, 43 Cal.3d at pp. 592-593; see also People v. Griffin (1988) 46 Cal.3d 1011, 1029 [251 Cal.Rptr. 643, 761 P.2d 103].)
We also distinguished those cases relied on by defendant: "each involve a submission by virtue of which the defendant surrendered at least his right to a jury trial...." (People v. Hendricks, supra, 43 Cal.3d at p. 593.) We remain persuaded by this analysis; defendant offers no convincing argument for reexamining our determination under these facts.
Furthermore, counsel represented that defendant agreed with the chosen strategy. (Cf. People v. Frierson, supra, 39 Cal.3d at p. 815 [counsel cannot refuse to honor defendant's "clearly expressed desire" to present a defense at guilt/special circumstances phase of trial].) When the record reflects a tactical choice to curtail presentation of defense evidence or closing argument with the defendant's purported knowledge and acquiescence, it would amount to an untoward interference with the attorney-client relationship to suggest the trial court has an obligation to question the defendant as to his concurrence in counsel's trial strategy and to secure a waiver of any rights incidentally relinquished. (Cf. People v. Thomas (1974) 43 Cal.App.3d 862, 867 [118 Cal.Rptr. 226] [no duty to advise represented defendant of right to testify or not to testify or to explain ramifications of either choice]; People v. Mosqueda (1970) 5 Cal.App.3d 540, 545 [85 Cal.Rptr. 346] ["[A] trial judge may safely assume that a defendant, who is ably represented and who does not testify is merely exercising his Fifth Amendment privilege against self-incrimination and is abiding by his counsel's trial strategy; otherwise, the judge would have to conduct a law seminar prior to every criminal trial."].)
A. Instructions
1. Easley/Boyd Contentions
In People v. Easley, supra, one of the penalty phase instructions provided for consideration of, among other factors, "`any other circumstance which extenuates the gravity of the crime, even though it is not a legal excuse for the crime.'" (34 Cal.3d at p. 877.) We did not reach the question of whether under the Eighth Amendment this language was misleading or confusing in omitting specific reference to circumstances relating to the offender as well as the offense. We concluded more fundamentally that "the trial court not only failed affirmatively to advise the jury that it could consider as a mitigating factor any aspect of the defendant's character or background, but it expressly — and inaccurately — informed the jury that it must not be influenced by sympathy or pity for the defendant." (Id., at p. 878; see also People v. Brown (1985) 40 Cal.3d 512, 536-537 [220 Cal.Rptr. 637, 709 P.2d 440], revd. sub nom. California v. Brown (1987) 479 U.S. 538 [93 L.Ed.2d 934, 107 S.Ct. 837].)
As a point of future reference, we noted that "trial courts — in instructing on the factor embodied in section 190.3, [factor] (k) — should inform the jury that it may consider as a mitigating factor `any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime' and any other `aspect of [the] defendant's character or record ... that the defendant proffers as a basis for a sentence less than death.' [Citation.]" (People v. Easley, supra, 34 Cal.3d at p. 878, fn. 10.)
Moreover, in reading the record as a whole, we do not find a reasonable likelihood the jurors were misled or confused by the failure to juxtapose these two factors. (See People v. Ghent, supra, 43 Cal.3d at p. 777; see also Boyde v. California (1990) 494 U.S. 370, — [108 L.Ed.2d 316, 329-330, 110 S.Ct. 1190, 1198].) In his argument, the prosecutor delineated this issue in consonance with our direction in Easley (34 Cal.3d at p. 878, fn. 10; see also CALJIC No. 8.85 (1986 rev.)): "[Factor] k, any other circumstance which extenuates the gravity of the crime, even though it is not a legal excuse for the crime, and any other aspect of the defendant's character or record that the defendant offers for the basis of a sentence less than death, including sympathy." (See Hitchcock v. Dugger (1987) 481 U.S. 393, 398 [95 L.Ed.2d 347, 352-353, 107 S.Ct. 1821].) Both sides argued the relative merits of defendant's childhood and other particulars of his background and character in fixing his sentence. (See People v. Caro (1988) 46 Cal.3d 1035, 1062-1063 [251 Cal.Rptr. 757, 761 P.2d 680]; see also People v. Murtishaw (1989) 48 Cal.3d 1001, 1032 [258 Cal.Rptr. 821, 773 P.2d 172].)
Nor does the rejection of proffered defense instructions assist defendant's argument. While some may have clarified the matter, others were
2. Refusal to Delete Inapplicable Aggravating and Mitigating Circumstances
We adhere to our determination that the court had no further obligation: "[T]he jury's knowledge of the full range of factors provides a framework for the exercise of its discretion and can assist the jury in placing the particular defendant's conduct in perspective. [Citation.]" (People v. Miranda, supra, 44 Cal.3d at pp. 104-105; see also People v. Marshall (1990) 50 Cal.3d 907, 932 [269 Cal.Rptr. 269, 790 P.2d 676]; People v. Ghent, supra, 43 Cal.3d at pp. 776-777.) The statutory language itself contemplates the trier of fact will determine the relevancy of the listed factors; to permit otherwise would invite endless, often irresolvable, controversy at trial and on appeal as to which were "applicable" and which "inapplicable" under the facts. Defendant offers no persuasive argument for reconsidering the soundness of our conclusions.
For similar reasons, the court did not err in failing to identify each factor as either "aggravating" or "mitigating." As a matter of law, some factors can only be considered in mitigation, e.g., moral justification. (See People v. Edelbacher, supra, 47 Cal.3d at p. 1034.) Others depend upon the
Given the nature of the jury's normative function, neither the prosecution nor the defense should be arbitrarily constrained from urging the jury to find life or death more appropriate according to its respective interpretation of the facts. To require the trial court to attach one label or the other would lead to unproductive, insoluble debates and would unduly hamper a meaningful examination of the full range of relevant considerations. As we explained in People v. Jackson, supra, 28 Cal.3d at page 316, with respect to the 1977 death penalty law, "the aggravating or mitigating nature of these various factors should be self-evident to any reasonable person within the context of each particular case."
3. Residual Doubt
The defense proffered the following "residual doubt" instruction: "Each individual juror may consider as mitigating factor residual or lingering doubt as to whether the defendant was the actual shooter.... [¶] Lingering or residual doubt is defined as the state of mind between beyond a reasonable doubt and beyond all possible doubt. [¶] Thus, if any individual juror has a lingering or residual doubt about whether the defendant was the actual shooter ..., you must consider this as a mitigating factor and assign it the weight you feel is appropriate."
Without question, "the Eighth and Fourteenth Amendments require that the sentencer ... not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any circumstance of the offense that the defendant proffers as a basis for a sentence less than death." (Lockett v. Ohio, supra, 438 U.S. at p. 604 [57 L.Ed.2d at p. 990], fns. omitted.) The Supreme Court has nonetheless explained that this principle "in no way mandates reconsideration by capital juries, in the sentencing phase, of their `residual doubts' over a defendant's guilt. Such lingering doubts are not over any aspect of [a defendant's] `character,' `record,' or a `circumstance of the offense.'" (Franklin v. Lynaugh (1988) 487 U.S. 164, 174 [101 L.Ed.2d 155, 166, 108 S.Ct. 2320].) Accordingly, a trial court has no duty to instruct on this point or to require a higher standard of proof of guilt at the penalty phase. (See id., at pp. 173-174 [101 L.Ed.2d at pp. 165-168].)
In this case, the issue of residual doubt arises in slightly different context, i.e., the jury could reconsider defendant's actual role in the killings as a potentially mitigating "circumstance of the offense." This difference, however, is without constitutional distinction. The Supreme Court has never held that the right to present evidence and argue extenuation encompasses a concomitant right to instruction on particularized mitigation. Moreover, in Franklin the court expressly declined to find any basis for imposing an instructional obligation as to residual doubt, concluding instead that Eighth Amendment concerns are adequately met as long as the defendant is "not deprived of any chance to have his sentencing jury weigh this element of his culpability." (Franklin v. Lynaugh, supra, 487 U.S. at p. 176 [101 L.Ed.2d at p. 167].)
"Lockett does not hold that the State has no role in structuring or giving shape to the jury's consideration of these mitigating factors. [Citation.] Given the awesome power that a sentencing jury must exercise in a capital case, it may be advisable for a State to provide the jury with some framework for discharging these responsibilities. And we have never held that a specific method for balancing mitigating and aggravating factors in a capital
We therefore conclude that, while a defendant may not be precluded from offering such evidence or arguing its relevance in mitigation, the Eighth and Fourteenth Amendments do not require the jury be instructed to consider residual doubt as to the extent of his participation in the offense, except as statutorily provided.
Defendant's considerable reliance on People v. Terry, supra, 61 Cal.2d 137, is likewise misplaced: its holding was not constitutionally based nor did it encompass an instructional mandate. In Terry, the defendant was prevented from submitting any evidence or arguing that the jury spare his life based on lingering doubt as to his guilt. We reversed the death penalty on statutory grounds since the sentencing procedure at the time "specifically sanction[ed] the presentation of evidence as to `the circumstances surrounding the crime ... and of any facts in ... mitigation of the penalty.'" (Id., at p. 146; see former § 190.1, added by Stats. 1957, ch. 1968, § 2, p. 3509.)
In explicating our analysis, Justice Tobriner eloquently expressed the rationale that obtains to this day: "Indeed, the nature of the jury's function in fixing punishment underscores the importance of permitting to the defendant the opportunity of presenting his claim of innocence. The jury's task, like the historian's, must be to discover and evaluate events that have faded into the past, and no human mind can perform that function with certainty. Judges and juries must time and again reach decisions that are not free from doubt; only the most fatuous would claim the adjudication of guilt to be infallible. The lingering doubts of jurors in the guilt phase may
Nevertheless, our holding neither imposed nor contemplated an obligation to instruct on lingering doubt. Nor could it have: Under the law at the time, the jury received virtually no instruction at the penalty phase, its task being to "decide the question without benefit of guideposts, standards or applicable criteria...." (People v. Terry, supra, 61 Cal.2d at p. 154.) The sentencer's discretion has since become considerably guided and standardized by statute and constitutional imperative. While the defendant retains a necessary degree of evidentiary latitude in appealing for leniency, we discern no basis for extrapolating a concomitant duty to instruct on any specific nonstatutory extenuating factor. Terry established no constitutional mandate to do so; and defendant offers no rationale for interpreting our state guaranties any more stringently than comparable federal provisions.
4. Trivialization of the Jury's Task
In Caldwell, the prosecutor told the jury during closing argument, "`[Y]our decision is not the final decision.... Your job is reviewable.'" (Caldwell v. Mississippi, supra, 472 U.S. at p. 325 [86 L.Ed.2d at p. 237].) The trial court also informed the jury that all that death penalty verdicts were automatically reviewed by the state supreme court. (Id., at pp. 325-326 [98 L.Ed.2d at p. 237].) The Supreme Court reversed the sentence: "Given such a situation, the uncorrected suggestion that the responsibility for any ultimate determination of death will rest with others presents an intolerable danger that the jury will in fact choose to minimize the importance of its role." (Id., at p. 333 [98 L.Ed.2d at p. 242].) "[I]t is constitutionally impermissible
No such danger or impairment arose under the facts of this case. Defendant has isolated a single word, which he argues compromised the reliability of the penalty verdict. The instructions as a whole contained no suggestion the jury would be absolved of the ultimate consequences of its sentencing decision. Rather, it described the mechanics of the jury's normative process. In this context, "simply" most reasonably referred to the nature of the procedure, i.e., a step-by-step analysis of the law to be applied to the facts, not the nature of the decision itself. At no time did the court indicate the responsibility for that decision would shift or that the verdict was other than final. Nor did the arguments of counsel imply otherwise. (See, e.g., People v. Edelbacher, supra, 47 Cal.3d at pp. 1039-1040; People v. Milner, supra, 45 Cal.3d at pp. 254-255.)
On the record, we may justifiably "assume that `jurors confronted with the truly awesome responsibility of decreeing death for a fellow human [acted] with due regard for the consequences of their decision.' [Citation.]" (Lockett v. Ohio, supra, 438 U.S. at p. 598 [57 L.Ed.2d at p. 986].) Defendant has not demonstrated any reasonable likelihood the jurors failed to appreciate the significance of their responsibility or to individualize their assessment of his moral culpability. (See also People v. Clark (1990) 50 Cal.3d 583, 634 [268 Cal.Rptr. 399, 789 P.2d 127].)
We also remain convinced of our well settled determination that the 1978 death penalty law does not create a mandatory sentencing formula. (See People v. Brown, supra, 40 Cal.3d at p. 540.) In fact, any "mandatory" implication clearly favored defendant: The court instructed the jury it had discretion ("may") to impose death if aggravation outweighed mitigation but was obligated ("shall") to impose life without parole if it concluded to the contrary.
5. Miscellaneous Claims of Instructional Error
In summary fashion, defendant makes several other allegations of instructional error. He acknowledges we have previously found them all without merit. As he offers no authority or rationale compelling reexamination, we perforce decline to engage in extended analysis in rejecting them.
B. Prosecutor's Argument
To forestall any later charge of ineffective assistance of counsel, we will nevertheless address the substance of defendant's contentions. In each instance, we find either that the prosecutor's argument was not improper or that any misstatement was not prejudicial when viewed in context.
1. Factor (k) — Defendant's Character as Aggravating Circumstance; Mitigation Must Relate to Circumstances of Crime
First, the prosecutor did not misstate the law in defining a "mitigating circumstance" as "reducing the moral culpability for that act in some fashion and in some way." (Italics added.) The very purpose of the penalty phase is to determine the appropriate sentence for the defendant's crime, i.e., an individualized assessment of the offender's moral culpability for his particular offense in light of statutorily and constitutionally relevant considerations. (See generally Woodson v. North Carolina (1976) 428 U.S. 280,
Second, at no time did the prosecutor suggest defendant's upbringing or other aspects of his background and character were irrelevant to the jury's assessment of whether he should receive the death penalty. (See also People v. Ainsworth (1988) 45 Cal.3d 984, 1033 [248 Cal.Rptr. 568, 755 P.2d 1017].) Rather, he argued that the brutality of the murders and defendant's cold-blooded execution of the victims outweighed any mitigatory significance. The prosecutor also did not erroneously imply that defendant's early home life and the negative influence of peer pressure should somehow be held against him. The thrust of this argument was that defendant had also had the countervailing benefit of a stable, secure environment provided by his great-grandmother as well as the concern of teachers who afforded guidance and sought to act as role models. A prosecutor does not mischaracterize such evidence by arguing it should not carry any extenuating weight when evaluated in a broader factual context. We have consistently declined to criticize advocacy of this nature. (See, e.g., People v. Hamilton (1989) 48 Cal.3d 1142, 1183 [259 Cal.Rptr. 701, 774 P.2d 730]; People v. Caro, supra, 46 Cal.3d at pp. 1062-1063; People v. Belmontes, supra, 45 Cal.3d at p. 807.)
2. Davenport Error
"In [People v.] Davenport, supra, 41 Cal.3d 247, 289-290, we held it improper for a prosecutor to argue that the absence of evidence of a statutory factor permitted or required that the factor be considered as one in aggravation. Thus the absence of evidence showing moral justification, extreme duress, extreme emotional disturbance, or childhood deprivation cannot be factors in aggravation. As we noted in Davenport, the factors mentioned in section 190.3 are to be considered only if relevant, and a mitigating factor such as duress or moral justification is irrelevant and should be disregarded when there is no evidence of its existence." (People v. Edelbacher, supra, 47 Cal.3d at p. 1034.)
Significantly, although the prosecutor misconstrued the law somewhat during his analysis of specific statutory factors, he prefaced his remarks with a correct statement of the applicable rule: "[T]he court will give you the instruction ... that the absence of some factor there does not make it an aggravating factor, but neither does it make it a mitigating factor. [¶] So when you look at some of these factors such as this one in D, if there is no evidence of that, of course, it would be neither way." The court instructed as well, "The absence of evidence concerning a particular mitigating circumstances does not constitute an aggravating circumstance."
The prosecutor also did not convey the impression that the absence of any evidence of a specific factor, in and of itself, was a circumstance in aggravation. When reasonably read in context, his argument characterized each factor so as to relate it to the circumstances of the crime, e.g., defendant acted "very coldbloodedly and methodically," negating any mitigation attributable to intoxication. (§ 190.3, factor (h); see People v. Burton, supra, 48 Cal.3d at p. 865.) While confining his analysis to statutorily relevant matters, he fragmented it in a manner that tended to inflate one particular basis, section 190.3, factor (a), for finding aggravation. (See People v. Morris, ante, 152 at p. 233, fn. 24 [279 Cal.Rptr. 720, 807 P.2d 949].) However, both the prosecution and the defense as well as the court repeatedly described the sentencing determination as a weighing process, "not just a matter of adding up these various categories" or "a mere mechanical weighing of factors on each side of an imaginary scale" or "a matter of counting." (See generally People v. Brown, supra, 40 Cal.3d at pp. 538-544.)
Moreover, although passing allusions were made to defendant's upbringing, the critical focus was the nature of the murders themselves and the degree of defendant's participation. Whether characterizing them as unitary or multifaceted, both sides argued strenuously that the circumstances of the crimes, particularly defendant's responsibility for the actual killings, were ultimately dispositive of the penalty determination. Hence, in context the prosecutor's evaluation amounted to "an exhortation that the evidence supported the conclusion that the aggravating circumstances overwhelmingly outweighed the mitigating circumstances in this case."
3. Lack of Remorse as Aggravating Circumstance
After reviewing the record, we find no impropriety. Moore and Brown testified that defendant remarked, "I just blew the bitch's head off," when he reentered the van after the shooting, suggesting a callous indifference to the consequences of his lethal acts. At the penalty phase, the defense essentially conceded defendant's presence during the killings but sought to minimize his actual participation. "Under such circumstances, it is not unfair to expect defendant to show some remorse...." (People v. Miranda, supra, 44 Cal.3d at p. 112; see People v. Gallego, supra, 52 Cal.3d at p. 197; People v. Williams, supra, 44 Cal.3d at pp. 966-967.) However, according to his great-grandmother, he consistently assured her he "had never hurt nobody in [his] life."
Under these circumstances, the prosecutor's two passing comments were not untoward. In one, he suggested defendant's lack of remorse undermined any sympathy that might have been engendered by his family's pleas to spare his life. Since the import of this argument challenged defendant's offer
While the other reference tended to cast lack of remorse as an aggravating factor, the prosecutor was simply emphasizing the "callous execution style" nature of the killings, i.e., a relevant circumstance of the offense. The context of the argument thus negated the possibility of an impermissible inference that lack of remorse, in and of itself, made defendant's crimes more reprehensible. Accordingly, we find "that such remarks could not have affected the penalty verdict. [Citation.]" (People v. Walker, supra, 47 Cal.3d at p. 650; see also People v. Carrera, supra, 49 Cal.3d at p. 339.)
4. Sympathy for Victims and Their Families; Use of Victims' Pictures in Life
The principle underlying Booth and Gathers appertains to the danger of interjecting into the sentencing determination consideration of "the character and reputation of the victim and the effect [of the crime] on his family," matters "wholly unrelated to the blameworthiness of a particular defendant." (Booth v. Maryland, supra, 482 U.S. at p. 504 [96 L.Ed.2d at p. 449].) In this regard, the Supreme Court noted with approval the following observation of our own Court of Appeal: "`We think it obvious that a defendant's level of culpability depends not on fortuitous circumstances such as
The remarks cited by defendant do not raise any of the foregoing concerns. Most importantly, the jury heard neither evidence nor argument describing the personal qualities of the victims or the impact on their families. Rather, the prosecutor's comments focused on specific aggravating or mitigating factors, offering the jury his estimation of their relative significance. For example, the record does not reflect an appeal to "sympathy" for "the victims from the Alexander family." These references arose in the broader context of whether the pleas of defendant's family should evoke sufficient overriding sympathy to warrant sparing his life. The prosecutor essentially sought to balance the jury's perspective, which does not generally constitute Booth error. (See People v. Burton, supra, 48 Cal.3d at p. 869; see also Booth v. Maryland, supra, 482 U.S. at p. 507, fn. 10 [96 L.Ed.2d at p. 451].)
Most of the other remarks related in some manner to the circumstances of the crime, referring broadly to the vulnerability of the victims and the brutality of their deaths. To that extent they were not inappropriate (see Booth v. Maryland, supra, 482 U.S. at p. 507, fn. 10 [96 L.Ed.2d at p. 451]); nor could they have impaired the jury's objectivity or impermissibly diverted its attention from weighing the statutory factors as instructed. (See People v. Morales (1989) 48 Cal.3d 527, 571-572 [257 Cal.Rptr. 64, 770 P.2d 244].)
The prosecutor also argued that the victims would have wanted another month or day to live and that Ebora Alexander's murder was her reward for a long life of "tribulation" and "good work." These observations were in response to the defense argument that an estimated 55 years in prison without possibility of parole was sufficient punishment: The prosecutor "simply asked that the jury not forget the victims and that the jurors consider the lives they might have had. This argument is permissible at the penalty phase. [Citation.]" (People v. Williams, supra, 44 Cal.3d at p. 967.)
In his closing remarks, the prosecutor briefly directed the jury's attention to the photographs of the victims in life. Although the use of these pictures at the guilt phase was unnecessary and therefore improper (ante, III.C.), at
C. Evidence of Defendant's Violent Criminal Conduct as Juvenile
Although perhaps not clear at the time of defendant's trial (but see People v. Boyd, supra, 38 Cal.3d at p. 767), the law has since been settled that any criminal activity involving force or violence comes within the purview of section 190.3, factor (b), irrespective of the offender's age: "[N]othing in the 1977 or 1978 laws indicates an intent to exclude violent criminal misconduct while a juvenile as an aggravating factor, simply on grounds the misconduct resulted in a juvenile wardship adjudication." (People v. Lucky, supra, 45 Cal.3d at p. 295, fn. omitted.)
This determination raises no inconsistency with the language or intent of the Juvenile Court Law. "The statutes provide, of course, that a juvenile adjudication `shall not be deemed conviction of a crime for any purpose....' (Welf. & Inst. Code, § 203, italics added.) However, introduction
Defendant's reliance on section 15 is misplaced. That statute defines a "crime or public offense" by reference to the imposition of various forms of punishment; it does not purport to delineate "criminal activity" for purposes of section 190.3, factor (b). Nor does the recent United States Supreme Court decision in Thompson v. Oklahoma (1988) 487 U.S. 815 [101 L.Ed.2d 702, 108 S.Ct. 2687], prohibiting the execution of any person who was a minor at the time of the offense, alter our analysis. Defendant was sentenced to death for crimes committed as an adult. The fact that the jury may have considered criminal activity he engaged in as a juvenile in determining the appropriate penalty does not implicate the Eighth Amendment as applied in Thompson.
We also discern no other basis for finding constitutional error. Pursuant to statutory mandate (§ 190.3), the prosecution apprised the defense of its intent to submit these matters at the penalty phase. The court imposed no limitations on cross-examination of the victims and other percipient witnesses.
D. Proportionality of Defendant's Sentence
Defendant next contends under the state and federal Constitutions that "the death penalty in this case is disproportionate considering [his] involvement in the offense and his background and character." He also seeks "a review for disparity of sentence" compared to similar offenses. (See § 1170, subd. (f).) Alternatively, he asks that this court exercise its discretion to reduce his sentence pursuant to section 1260. In light of settled authority and the facts of this case, we reject each of these contentions.
The facts of this case offer no credible point of comparison. In sustaining the jury's guilt and penalty verdicts, the trial court emphasized that the evidence established "clearly beyond a reasonable doubt" that "defendant himself, without question, was the actual killer," who acted "deliberately and with premeditation" and without moral justification. Codefendant Williams received the death penalty and codefendant Burns was sentenced to life in prison without possibility of parole for their participation. (See People v. Burns (1987) 196 Cal.App.3d 1440 [242 Cal.Rptr. 573], review den. Mar. 31, 1988.) Thus, defendant's sentence is not disproportionate to either his individual culpability or the punishment of his partners in crime. (See, e.g., People v. Caro, supra, 46 Cal.3d at p. 1068; People v. Miranda, supra, 44 Cal.3d at p. 118.) We likewise find no basis for exercising our discretion to reduce defendant's punishment pursuant to section 1260.
E. Miscellaneous Constitutional Challenges to 1978 Death Penalty Statute
In summary fashion and without critical analysis, defendant raises several challenges to the validity of the 1978 death penalty statute under the federal and state Constitutions. We have consistently rejected each of these
V. NEW TRIAL MOTION
Defendant challenges the trial court's denial of his motion for a new penalty trial and asserts the prosecutor, aided and abetted by the court, unconstitutionally interfered with his ability to obtain evidence to substantiate juror misconduct. These contentions arise in the following factual context: After the penalty verdicts were read and the jury polled, the court apparently informed the jurors the defense attorneys wished to speak with them and they were free to do so at that time or later if they so desired. The parties were then directed to return March 18, 1986, for sentencing. Subsequently, the court signed an order "allowing defense counsel through their investigators to be able to make contact with the jurors in this case."
On March 5, in response to ex parte
On March 18, the court granted a two-week continuance based on a claim that "actions of the district attorney and the court" had prevented the defense from obtaining information about possible jury misconduct. According to counsel, the prosecutor had engaged in "inflammatory" conduct and had "intimidated jurors through the news media so no jurors will talk to us now."
Subsequently, a defense questionnaire was sent to each of the jurors. Some were returned to defense counsel through the court, but neither the questionnaires themselves nor their contents were revealed or offered into the record. On April 30, the court held a hearing on the motion for a new trial. The motion was unaccompanied by any affidavits, but counsel made the following oral representations apparently based on the statement originally obtained by a defense investigator from Juror Whitfield:
"[W]e have evidence that Shirley Crawford was talking about the letter received in the Burns' [sic] trial, the letter that was intercepted by the sheriffs which implicated Mr. Burns and Mr. Cox in the shooting, which was not part of the evidence in this case.
"We also have evidence that jurors were told not to smoke at the table while they were deliberating because the nonsmoking jurors were bothered by it; and that they refused to follow that order and did smoke causing some jurors to be intimidated and change their votes.
"Also, we have evidence that juror Michael Milner was drinking during lunch.
"Also, we have evidence that it was discussed that Burns got a life sentence which was not part of the evidence in this case.
"Also, it was brought out that a juror, Arthur Williams, told the entire panel that the death penalty had not been exercised in California since the 1960s; and with Rose Bird on the court, that Mr. Cox would not die anyway so it didn't matter whether they gave him death or not.
"At one point the jury was hung seven for death and five for life; and one of the jurors for death told the life jurors that if they held out the jury would be locked up for three weeks; and this influenced some of the jurors to change their votes."
A. Allegations of Juror Misconduct Insufficient to Warrant New Trial
Evidence Code section 1150, subdivision (a), provides: "Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined."
In People v. Orchard (1971) 17 Cal.App.3d 568 [95 Cal.Rptr. 66], the defense sought a new trial because the foreman had chastised one of the jurors during deliberations, which "`so embarrassed and humiliated [her] in front of the other members of the jury that she voted "guilty" on the next ballot rather than be subjected to the domination and coercion of the foreman.'" (Id., at p. 572, fn. 1.) Discounting those portions of the affidavit recounting the effect of the foreman's conduct, the Court of Appeal concluded the remainder "simply describe[d] an account of interchange between jurors.... To permit inquiry as to the validity of a verdict based upon the demeanor, eccentricities or personalities of individual jurors would deprive the jury room of its inherent quality of free expression." (Id., at p. 574.)
Under similar circumstances here, we are precluded from considering any matters concerning the jurors' ratiocinations. Thus, while the conduct of jurors disregarding an agreement on smoking or complaining about the pace of deliberations may be scrutinized, the effect of this conduct on subsequent votes may not be. When we exclude the latter, the former, standing alone, does not implicate juror misconduct; nor does the record otherwise demonstrate that some members of the jury were prevented from freely expressing their views because of these two circumstances. Accordingly, these allegations would not sustain defendant's motion for a new trial. (See also People v. Aeschlimann (1972) 28 Cal.App.3d 460, 471-472 [104 Cal.Rptr. 689].)
Nevertheless, given our particular concern to preserve the reliability of death penalty verdicts, we reiterate an earlier admonition on this subject: "The consumption of alcoholic beverages by jurors, whether during the
At the time the jury was considering defendant's penalty, February 1986, Chief Justice Bird and Associate Justices Grodin and Reynoso were the objects of a strenuous and well publicized campaign to unseat them at the impending retention election. It coalesced around the high percentage of death penalty reversals and the claim that, led by the Chief Justice, this court was intentionally evading the law in refusing to affirm more of those decisions and allow executions to recommence. Regardless of their political interest or inclination, few citizens of the state could have been unaware of the situation or the circumstances prompting these efforts. (See, e.g., People v. Morris, supra, ante, at pp. 180-181.) We find no misconduct in a single reference to factual matters of which the entire jury undoubtedly had some independent knowledge.
B. Insufficiency of Evidence as to Remaining Allegations of Misconduct
The foregoing determinations resolve defendant's contention that the trial court erred in denying his motion for a new trial with respect to these four allegations of juror misconduct without further consideration of the prosecutor's conduct or the procedures utilized by the court.
The trial court must nevertheless examine the proffered basis for the new trial motion and determine whether credible and admissible evidence substantiates the underlying allegations. In this case, defendant offered to submit the unsworn statement of Juror Whitfield and the affidavit of a defense investigator recounting her statement to him. Under the circumstances, the court did not abuse its discretion in according little, if any, credence to assertions the declarant was unwilling to verify. (See People v. Scott (1982) 129 Cal.App.3d 301, 307, 309 [180 Cal.Rptr. 891]; People v. Brown (1976) 61 Cal.App.3d 476, 479 [132 Cal.Rptr. 217]; see also People v. Pierce (1979) 24 Cal.3d 199, 206, fn. 3 [155 Cal.Rptr. 657, 595 P.2d 91]; People v. Guthaus (1962) 208 Cal.App.2d 785, 792 [25 Cal.Rptr. 735].) Furthermore, "[i]t is settled ... that `a jury verdict may not be impeached by hearsay affidavits.' [Citations.]" (People v. Williams, supra, 45 Cal.3d at pp. 1318-1319.) The record thus contains no competent evidence the jury considered matters not introduced at defendant's trial; the court thus properly denied the motion for lack of evidentiary support.
Our recent decision in People v. Hedgecock (1990) 51 Cal.3d 395 [272 Cal.Rptr. 803, 795 P.2d 1260], does not alter this conclusion. In Hedgecock, we held that "it is within the discretion of a trial court to conduct an evidentiary hearing to determine the truth or falsity of allegations of jury misconduct, and to permit the parties to call jurors to testify at such a hearing. [Footnote omitted.]" (Id., at p. 419.) This holding is, nonetheless, qualified by our discussion of the rationale in its factual context.
Defendant Hedgecock's motion for a new trial was supported by affidavits implicating juror misconduct; the prosecution submitted counteraffidavits denying any impropriety occurred. Believing it lacked authority to do so, the trial court refused to hold an evidentiary hearing to resolve the conflicts. (People v. Hedgecock, supra, 51 Cal.3d at pp. 411-414.) Since section 1181 does not expressly preclude in court questioning of jurors, we concluded the court improperly failed to exercise its discretion to determine whether this procedure was appropriate under the circumstances.
For several reasons, we decline to extend the holding in Hedgecock to situations in which the defendant merely seeks to place unsworn statements under oath by calling upon reluctant jurors to reiterate those statements from the witness stand. First, we find no constitutional, statutory, or decisional imperative supporting such an extension.
Second, requiring testimony under such circumstances is tantamount to the type of "fishing expedition" condemned in Hedgecock. Either a juror is willing to come forward and, at least on a preliminary basis, sign an affidavit or not. Unless the reticence results from impermissible interference by the court or prosecutor, the reasons therefor should not be subject to further inquiry. (See, e.g., People v. Atkins (1988) 203 Cal.App.3d 15, 23-28 [249 Cal.Rptr. 863], disapproved on other grounds in People v. Jones (1990) 51 Cal.3d 294, 322 [270 Cal.Rptr. 611, 792 P.2d 643]; cf. In re Martin (1987) 44 Cal.3d 1, 30-32 [241 Cal.Rptr. 263, 744 P.2d 374] [prosecutor may not engage in activity that renders willing defense witness unwilling to testify].) By analogy to Evidence Code section 1150, these mental processes must remain equally inviolate. (See also In re Stankewitz (1985) 40 Cal.3d 391, 398 [220 Cal.Rptr. 382, 708 P.2d 1260].)
Finally, the Court of Appeal in People v. Scott, supra, aptly identified one of the inherent dangers posed by evidentiary hearings at which jurors are examined concerning their deliberations: "To grant this kind of power to the losing attorney would open the door to harassment of jurors and ... ultimately damage the jury process and the administration of justice." (129 Cal. App.3d at p. 308.) In the civil context, we have also recognized that "permitting counsel for the losing party to interrogate unwilling trial jurors touches the integrity of our venerable jury process.... [O]nce aware that after sitting through a lengthy trial he himself may be placed on trial, only the most courageous prospective juror will not seek excuse from service." (Linhart v. Nelson (1976) 18 Cal.3d 641, 644-645 [134 Cal.Rptr. 813, 557 P.2d 104] [finding new trial motion in civil cases be must made upon affidavit only (Code Civ. Proc., § 658)].)
Moreover, jurors might well completely refuse to talk with defense counsel or investigators if they anticipated being called into court for subsequently declining to acknowledge their statements under oath. The untoward result of potentially foreclosing any possibility of uncovering misconduct militates against applying Hedgecock in a broader factual context.
Defendant argues unpersuasively that he did confront impermissible interference with his access to the jurors, thereby preventing him from making an evidentiary showing sufficient either to support his new trial motion or at least to justify a hearing under Hedgecock. As to the court's actions, we find no impropriety. A trial court has inherent as well as statutory discretion to control the proceedings to ensure the efficacious administration of justice. (See, e.g., § 1044; Evid. Code, § 765; People v. Melton, supra, 44 Cal.3d at p. 734; Cooper v. Superior Court (1961) 55 Cal.2d 291, 301-302 [10 Cal.Rptr. 842, 359 P.2d 274].) The proper exercise of such discretion does not require the defense be allowed unqualified access to the jury after the conclusion of the trial. Indeed, by statute jurors now have an absolute right to decline any efforts to probe the particulars of their deliberations. (See Code Civ. Proc., § 206, subd. (a), added by Stats. 1988, ch. 1245, § 2; see also Cal. Const., art. I, § 1 [right of privacy]; People v. Atkins, supra, 203 Cal. App.3d at p. 27; Rules Prof. Conduct of State Bar, former rule 7106(D) [now rule 5-320(D)] [counsel may not harass or embarrass jurors by questioning after trial].)
Accordingly, after being apprised of juror anxiety resulting from contacts by defense investigators, the court did not overstep its authority in directing that all further communication would be through the court clerk unless jurors were already agreeable. In this manner, the court actually preserved defendant's interests by providing a mechanism whereby the jurors could be relieved of their apprehensions if they were otherwise inclined to discuss the proceedings with defense investigators. (See also People v. Atkins, supra, 203 Cal. App.3d at p. 26.)
As for the allegedly "inflammatory" actions of the prosecutor in speaking with the press, the record does not establish any connection between the prosecutor's conduct and juror reluctance to communicate with the defense.
Furthermore, since defendant enjoyed no right of access to the jurors, we find his reliance on the Sixth Amendment guaranties of right to counsel and a fair jury trial as well as his reference to due process unconvincing in this context.
VI. CONCLUSION
The judgment is affirmed in its entirety.
Lucas, C.J., Panelli, J., Kennard, J., and Baxter, J., concurred.
I concur in the judgment, but write separately to express my concern on one point involving the motion for new trial and defendant's unsubstantiated claim that there was serious juror misconduct.
The sequence of events following the entry of the judgment up until the hearing on the motion for new trial is rather disturbing. There is some suggestion that the prosecutor, using the media, may have caused some jurors to become reluctant to speak to defense investigators about the possibility of jury misconduct. While I agree with the majority opinion that the record contains insufficient evidence regarding the publicity to determine that the prosecutor's conduct caused the jurors to refuse to speak to the defense investigators, and note that the trial court made every accommodation to defendant to encourage jurors to respond to defendant's questions, I would condemn any use of the press for the purpose of discouraging juror contact with the defense team as flagrant misconduct. I cannot agree with the majority that the prosecutor's "posttrial activities are generally not subject to any constitutional restraint." (Maj. opn., ante, at p. 700.) Obviously the prosecutor cannot act in such a way as to impair a defendant's right to a fair hearing at a motion for new trial, at imposition of sentence, or on appeal. In the case of such misconduct, the failure of the defendant to present a proper affidavit to support the motion for new trial would have to be excused.
I concur in the judgment as to guilt and death eligibility. After review, I have found no error warranting reversal on those issues.
I also write separately to set forth my reasons for rejecting defendant's claim that in its instructions the trial court erred by failing to label the penalty factors as "aggravating" or "mitigating." In doing so, I follow my concurring opinion in People v. Gallego (1990) 52 Cal.3d 115 [276 Cal.Rptr. 679, 802 P.2d 169].
"Under the 1978 death penalty law, the determination of punishment turns on the personal moral culpability of the capital defendant. Culpability is assessed in accordance with specified factors of `aggravation' and `mitigation' as construed in the case law: (a) the circumstances of the crime; (b) prior violent criminal activity; (c) prior felony convictions; (d) extreme mental or emotional disturbance; (e) victim participation or consent; (f) reasonable belief in moral justification or extenuation; (g) extreme duress or substantial domination; (h) impairment through mental disease or defect or through intoxication; (i) age; (j) status as an accomplice and minor participant; and (k) any other extenuating fact.
"As used in the law, `aggravation' means that which increases the personal moral culpability of the defendant above the level of blameworthiness that inheres in the capital offense. By contrast, `mitigation' means that which reduces the defendant's culpability below that level.
"It follows that, strictly speaking, none of the penalty factors is `aggravating' or `mitigating.' Rather, it is the circumstances they define that are properly characterized as such. The point is established by the very words of the law: `aggravating' and `mitigating' are always used to modify `circumstances,' and never to modify `factors.'
"Therefore, I am of the opinion that the trial court did not err in its instructions by failing to label the penalty factors as `aggravating' or `mitigating.' It is, of course, virtually axiomatic that a court must correctly instruct on the law, and that it acts properly when it does so. Here, the court's instructions were in conformity with the law. `Labeling' would not have been.
"I also recognize that the trial court did not identify which circumstances were `aggravating' and which `mitigating.' Like the definitions referred to above, identification may aid the jury and should generally be given in the future. But also like those definitions, its omission is usually not error. A jury should be able to identify the specified circumstances as `aggravating' or `mitigating' by itself. This is because their nature is `self-evident.'[
Although the trial court did not err by failing to label the penalty factors as "aggravating" or "mitigating," as noted above it did indeed do so by denying defendant's motion for new trial on the issue of penalty and by refusing his request for an evidentiary hearing relating thereto. I would
Appellant's petition for a rehearing was denied June 26, 1991.
FootNotes
Without deciding whether the Eighth Amendment concerns articulated in Booth apply to the guilt phase of a capital offense trial (cf. Beck v. Alabama (1980) 447 U.S. 625, 642 [65 L.Ed.2d 392, 405-406, 100 S.Ct. 2382]), we do not find them implicated by the appearance of the victims' relatives in this case. The testimony of all three witnesses was brief and factual. They related no information concerning the character of any of the decedents or the impact of their deaths. No improper influence on the jury's guilt or penalty deliberations appears of record.
Moreover, although we need not and do not resolve the issue under the facts of this case, we question the premise that the failure to modify CALJIC No. 3.00 results in an erroneous instruction on the requisite intent for aiding and abetting either by withdrawing that element from the jury's determination or by imposing a conclusive presumption. The rationale of People v. Hammond, supra, 181 Cal.App.3d 463, was that the jury might find the instruction ambiguous as to the full extent of its fact-finding obligation in assessing intent. This type of instructional error, which does not implicate any constitutional considerations, is traditionally subject to a miscarriage-of-justice standard of review. (People v. Watson, supra, 46 Cal.2d at p. 836.)
However, as in Thompson, defendant failed to frame his instruction in a manner that directed the jury to a proper consideration of the lingering doubt question. As a matter of statutory mandate, the court must charge the jury "on any points of law pertinent to the issue, if requested" (§ 1093, subd. (f); see § 1127; People v. Thompkins (1987) 195 Cal.App.3d 244, 256-257 [240 Cal.Rptr. 516]); thus, it may be required to give a properly formulated lingering doubt instruction when warranted by the evidence. (See People v. Thompson, supra, 45 Cal.3d at pp. 134-135; People v. Terry, supra, 61 Cal.2d at pp. 145-147.) Nevertheless, this obligation obtains only insofar as the request accurately reflects its supporting authority. While, by logical extrapolation, People v. Terry, supra, 61 Cal.2d 137, may sustain an instruction on lingering doubt as to the nature of the accused's participation, defendant's proffered language erroneously prescribed that the jury evaluate this factor in a particular manner. (See, post, fn. 21.) Hence, the trial court did not err in rejecting it.
As worded, the instruction invaded the jury's responsibility to determine whether a particular "circumstance of the crime" was aggravating, mitigating, or irrelevant and "arbitrarily stressed certain items of evidence." (People v. Howard, supra, 44 Cal.3d at p. 442.) The instruction setting forth the list of factors in section 190.3, including factor (k), adequately apprised the jury of the relevant considerations when evaluated in light of the evidence and argument by counsel without disturbing the balance of the weighing process. (See People v. Gordon, supra, 50 Cal.3d at p. 1277.)
By contrast in Hedgecock, affidavits and counteraffidavits from the 12 jurors and 2 bailiffs contained significant factual discrepancies, which might best be resolved by an evidentiary hearing. Scott was disapproved only to the extent it implied the trial court has no discretion to order such a hearing or examine jurors in resolving a question of jury misconduct. (People v. Hedgecock, supra, 51 Cal.3d at p. 419, fn. 9, and accompanying text.)
"Thus, it is manifest that the circumstances of the crime itself can be either aggravating or mitigating. Their character depends on the greater or lesser blameworthiness they reveal.
"The same is true of prior violent criminal activity. The presence of such activity suggests that the capital offense is the product more of the defendant's basic character than of the accidents of his situation, whereas its absence suggests the opposite.
"Similarly, prior felony convictions can be either aggravating or mitigating. Like the presence or absence of prior violent criminal activity, the existence or nonexistence or previous convictions reflects on the relative contributions of character and situation. Further, the existence of such convictions reveals that the defendant had been taught, through the application of formal sanction, that criminal conduct was unacceptable — but had failed or refused to learn his lesson.
"The age of the defendant can also be either aggravating or mitigating. Age functions `as a metonym for any age-related matter suggested by the evidence or by common experience or morality that might reasonably inform the choice of penalty.'
"The existence of any of the following circumstances, however, is mitigating and mitigating only: extreme mental or emotional disturbance; victim participation or consent; reasonable belief in moral justification or extenuation; extreme duress or substantial domination; impairment through mental disease or defect or through intoxication; status as an accomplice and minor participant; and any other extenuating fact.
"By contrast, the nonexistence of any of the foregoing circumstances is not and cannot be aggravating. The absence of mitigation does not amount to the presence of aggravation." (People v. Gallego, supra, 52 Cal.3d at pp. 208-209, fn. 1 (conc. opn. of Mosk, J.), citations omitted.)
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