People v. Lucky

BROUSSARD, J.

I concur in the affirmance of the guilt phase and in the finding of special circumstances. I dissent to the imposition of the death penalty.

In a prior opinion in this case, we identified four penalty phase errors: (1) the court’s failure to instruct the jury specifically to consider and weigh defendant’s mitigating evidence of character and background; (2) its direction that the jury disregard the consequences of its verdict; (3) its instructions permitting the jury to regard the murders as two special circumstances instead of a single circumstance of multiple murder; and (4) the admission of testimony of defendant’s poor performance on parole. The present majority opinion acknowledges all but the first of these errors.

With respect to that error—the failure to instruct the jury to weigh mitigating character and background evidence under factor (k) of the 1978 death penalty law (Pen. Code, § 190.3, factor (k))—the majority rejoin that the jury was instructed to consider “all” the evidence. Our prior opinion explained, however, that “the court directed the jury only to ‘consider’ that evidence as part of the mass of evidence received during both the guilt and penalty phases, but called attention specifically to the statutory factors, directed the jury not only to ‘consider’ but to ‘weigh’ those factors, and told it to determine the penalty on the basis of the weight assigned. Thus, as in People v. Lanphear [1984] 36 Cal.3d 163, 168, fn. 1 [203 Cal.Rptr. 122, 680 P.2d 1081], ‘the instructions suggest to the jury that mitigating evidence relevant to the defendant’s character and background, which may give rise to sympathy, is not entitled to the same consideration in weighing mitigating against aggravating factors as evidence that extenuates moral culpability.’” (See People v. Frank (1985) 38 Cal.3d 711, 748-751 [700 P.2d 415] (Bird, C. J., conc. and dis.).)

The new majority, however, makes up for this lapse by calling attention to another error. The prosecutor argued that defendant should be given the *305death penalty because, if imprisoned for life without possibility of parole, defendant might escape, and then “how safe would we be?” As Chief Justice Traynor explained in People v. White (1968) 69 Cal.2d 751, 762 [72 Cal.Rptr. 873, 446 P.2d 993], such an argument “erroneously invited the jury to speculate . . . as to the possibility that in the future prison officials might be ineffective in the discharge of their duties and permit defendant to escape.” Such speculation diverts the jury from its duty to determine which penalty, death or life imprisonment without possibility of parole, is appropriate for the defendant. (Ibid.)

As we concluded in our prior opinion, “[e]ach of these errors relates to a significant legal issue; each contains a small but real possibility of affecting the result.” When the cumulative effect of all the errors is considered, the likelihood that one or more played a part in leading the jury to return a death verdict is sufficient for us to find a reasonable possibility that, absent error, defendant would not have been sentenced to die. I would therefore reverse the penalty verdict and remand the case for a new penalty trial.

Appellant’s petition for a rehearing was denied July 21, 1988.