People v. Brown

• Decision Date: 11 July 1988
• Citation: 45 Cal.3d 1247,756 P.2d 204,248 Cal.Rptr. 817
• Court: California Supreme Court
• Parties: , 756 P.2d 204 The PEOPLE, Plaintiff and Respondent, v. Albert Greenwood BROWN, Jr., Defendant and Appellant. Crim. 22501, S004424.

Page 817

248 Cal.Rptr. 817

45 Cal.3d 1247, 756 P.2d 204

The PEOPLE, Plaintiff and Respondent, v. Albert Greenwood BROWN, Jr., Defendant and Appellant.

Crim. 22501, S004424.

Supreme Court of California,

In Bank.

July 11, 1988.

Rehearing Denied Sept. 15, 1988.

Frank O. Bell, Jr., State Public Defender, under appointment by the Supreme Court, Monica Knox, Chief Asst. State Public Defender, Robert Scarlett, Steven W. Parnes and Donald L. A. Kerson, Deputy State Public Defenders, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Harley D. Mayfield, Asst. Atty. Gen., Keith I. Motley, Jesus Rodriquez, John W. Carney, Steve Zeigen and Jay M. Bloom, Deputy Attys. Gen., for plaintiff and respondent.

EAGLESON, Justice.

This case, an automatic appeal, is before us on remand from the United States Supreme Court. Our original decision (hereafter Brown I ) was filed December 5, 1985. (40 Cal.3d 512, 230 Cal.Rptr. 834, 726 P.2d 516.) A jury convicted defendant of the rape and premeditated murder of 15-year-old Susan J. Under the 1978 death penalty initiative, a rape-murder special circumstance (Pen.Code, § 190.2, subd. (a)(17)(iii) ¹) was found true. After a penalty trial, the jury imposed the death sentence. This court unanimously upheld the guilt and special circumstance verdicts. However, a five-justice majority (per Grodin, J.; see also conc. opn. of Bird, C.J.) reversed the death judgment, ruling under dispositive California precedent that the penalty phase instruction to disregard sympathy (CALJIC No. 1.00) was constitutionally improper and prejudicial, and thus invalidated the sentence. (40 Cal.3d at pp. 521, 536-537, 230 Cal.Rptr. 834, 726 P.2d 516, citing People v. Easley (1983) 34 Cal.3d 858, 875-880, 196 Cal.Rptr. 309, 671 P.2d 813, and People v. Lanphear (1984) 36 Cal.3d 163, 165-169, 203 Cal.Rptr. 122, 680 P.2d 1081.) In separate opinions, two justices dissented from the penalty reversal. (Conc. & dis. opns. of Mosk, J. and Lucas, J.)

The United States Supreme Court granted certiorari. (Cert. granted June 2, 1986, 476 U.S. 1157, 106 S.Ct. 2274, 90 L.Ed.2d 717.) A five-justice majority ultimately concluded that California's standard-form instruction to avoid "mere sentiment, conjecture, sympathy, passion, prejudice, public opinion, or public feeling" does not violate the federal Constitution when given at the penalty phase of a capital trial. Our judgment was reversed and the cause was remanded for proceedings not inconsistent with the high court decision. (California v. Brown (1987) 479 U.S. 538, ---- - ----, 107 S.Ct. 837, 838-841, 93 L.Ed.2d 934, 938-941 (plur. opn.), at pp. ---- - ----, 107 S.Ct. at pp. 841-842, 93 L.Ed.2d at pp. 941-943 (conc. opn. of O'Connor, J.).) We requested supplemental briefs from the parties and set the case for argument.

While vacation of this court's "judgment" technically leaves all appellate issues at large, the federal high court did not address the guilt phase issues which were unanimously resolved against defendant in Brown I, 40 Cal.3d at pp. 525-536, 230 Cal.Rptr. 834, 726 P.2d 516. The parties have presented no new argument with respect to the guilt trial, and we find no basis for reconsidering Brown I 's analysis of the guilt and special circumstance issues. For the reasons stated in Brown I, we will again affirm the convictions and the special circumstance finding.

The United States Supreme Court's rejection of this court's prior ground for reversing the penalty judgment requires us to analyze the remaining penalty issues presented by defendant. We now conclude that no error occurred warranting a new penalty trial. As will appear, however, the trial judge failed to fulfill his statutory duty to decide the automatic post-trial motion for modification of the penalty verdict. ( § 190.4, subd. (e) (hereafter § 190.4(e).) We must therefore reverse the death judgment solely for purposes of a limited remand to allow consideration of the modification motion. (See People v. Rodriguez (1986) 42 Cal.3d 730, 792-795, 230 Cal.Rptr. 667, 726 P.2d 113.)

1. Guilt and penalty phase evidence.

Brown I sets forth in detail the evidence presented at the guilt and penalty phases of defendant's trial. (40 Cal.3d at pp. 522-525, 230 Cal.Rptr. 834, 726 P.2d 516.) We briefly review the facts pertinent to the penalty issues now before us.

Overwhelming evidence establishes that on the morning of October 28, 1980, as Susan J. walked past a Riverside orange grove on her way to school, defendant waylaid, raped, and murdered her. During the evening of October 28, someone who the evidence indicates was defendant made several taunting telephone calls to both Susan's parents and the police. The caller claimed Susan would never be seen alive again and gave clues to the whereabouts of her body and of certain items she had been carrying. Guided by the calls, the police found the body late on the evening of October 28. It was lying face-down, with dirt piled up around the head. The cause of death was strangulation. There were signs of a struggle, and a lace from one of Susan's shoes was wrapped tightly around her neck. Defendant presented an alibi defense through his mother but did not testify in his own behalf at the guilt trial.

"[In its case in chief at] the penalty phase, the prosecution presented evidence of defendant's 1977 rape of 14-year-old Kelly P. [The victim's testimony indicated that defendant entered her home, threw a jacket over her head as she emerged from the shower, and choked her when she tried to escape.] Defendant pled guilty to the rape and was sentenced to state prison. He was released in June 1980 on one year's parole.

"The defense presented psychiatric and background evidence suggesting that defendant[, though he was legally sane and had no organic brain damage,] suffered severe emotional problems, including extreme sexual maladjustment and dysfunction. [A defense psychiatrist, Dr. Summerour, indicated that defendant's history of violent sexual misconduct stemmed from a deep family-induced fear of normal physical relations with women. Dr. Summerour opined that defendant killed Susan out of shame for raping her, and that the body's face-down position suggested defendant's inability to confront his victim. In the psychiatrist's view, defendant's subsequent telephone calls also indicated shame and a desire to be caught. Dr. Summerour urged that defendant was not violent by nature, was dangerous only to women, and thus would not be a problem in custody.] Numerous relatives testified [that defendant had a kind, nonviolent nature and] to their affection for [him. They pled for his life. On cross-examination, defendant's father conceded defendant's various youthful scrapes with the law, including at least one Marine Corps court martial and apparent convictions for trespass and a misdemeanor sex offense.] Defendant himself took the stand, expressed remorse for his rape of Kelly P., and asked the jury to show mercy." ( Brown, I, 40 Cal.3d at p. 525, 230 Cal.Rptr. 834, 726 P.2d 516.)

2. Was the jury prejudicially misinformed about the relevant scope of mitigating evidence?

Brown I held that where defendant offers substantial mitigating evidence of his character and background, but the jury is told only that it may weigh in mitigation evidence which extenuates the severity of the capital crime itself, a penalty phase "antisympathy" instruction impermissibly interferes with the sentencer's constitutional duty to consider all "sympathetic" evidence defendant proffers in behalf of a penalty less than death. (40 Cal.3d at pp. 536-537, 230 Cal.Rptr. 834, 726 P.2d 516; see, e.g., Eddings v. Oklahoma (1982) 455 U.S. 104, 110-115, 102 S.Ct. 869, 874-877, 71 L.Ed.2d 1, and conc. opn. of O'Connor, J., at pp. 117-119, 102 S.Ct. at 878-879.) On certiorari, the United States Supreme Court reversed, ruling that the Eighth and Fourteenth Amendments do not forbid California's "antisympathy" instruction at the penalty phase of a capital trial. ( California v. Brown, supra, 479 U.S. 538, 107 S.Ct. 837, 93 L.Ed.2d 934.)

The lead opinion, by Chief Justice Rehnquist, reasoned that the Eighth Amendment requires guided sentencing discretion and thus precludes penalty judgments not based on the evidence. The opinion concluded that the challenged instruction, which warns against "mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling" (italics added), can reasonably be understood only as a proper admonition to avoid considerations "totally divorced from the evidence adduced during the penalty phase." (Id., at pp. ---- - ----, 107 S.Ct. at pp. 839-840, 93 L.Ed.2d at pp. 939-941.)

Justice O'Connor joined the judgment and the lead opinion, supplying the crucial fifth vote for reversal, but only with an important proviso. In a separate concurrence, she noted that "[t]his case squarely presents the [long-existing] tension" between two Eighth Amendment capital-sentencing precepts--"guided" sentencing discretion, on the one hand, and, on the other, the sentencer's opportunity to consider "any relevant mitigating evidence" about the offense and the offender. (Italics added.) The purpose of such mitigating evidence, she suggested, is not to produce simply an emotional response, but a moral one; hence, as the majority suggested, a warning against "mere" sympathy is not in and of itself improper.

However, Justice O'Connor pointed out, neither the 1978 death penalty law nor the standard instructions given at defendant's penalty trial expressly provide that the sentencer must consider general character and background evidence in mitigation of penalty. She noted that the only instruction at defendant's penalty trial which might suggest the relevance of "nonstatutory" mitigating factors was the "unadorned factor (k) instruction," which speaks only of circumstances which "[extenuate] the gravity of the crime." ( § 190.3,...