People v. Tuilaepa

*596MOSK, J.

I concur in the judgment. After review, I have found no reversible error or other defect.

I write separately to make two points, one specific to this case and the other of more general applicability.

The first concerns defendant’s appointed trial counsel, an attorney who is no stranger to this court. (See, e.g., People v. Wilson (1992) 3 Cal.4th 926 [13 Cal.Rptr.2d 259, 838 P.2d 1212]; In re Wilson (1992) 3 Cal..4th 945 [13 Cal.Rptr.2d 269, 838 P.2d 1222].) To my mind, counsel’s performance was deficient in many regards. That is to say, it failed to satisfy an objective standard of professional reasonableness. Nevertheless, his failings did not subject the defense to prejudice. No reasonable probability exists that a more favorable outcome would have resulted in their absence. Hence, counsel’s assistance was not ineffective under either the Sixth Amendment to the United States Constitution or article I, section 15 of the California Constitution. (See generally People v. Ledesma (1987) 43 Cal.3d 171, 215-218 [233 Cal.Rptr. 404, 729 P.2d 839] [discussing both federal and state constitutional provisions].)

The second point relates to defendant’s claim under Stringer v. Black (1992) 503 U.S. _ [117 L.Ed.2d 367, 112 S.Ct. 1130] (Stringer). As 1 stated in my dissenting opinion in People v. Proctor, ante, at page 499 [15 Cal.Rptr.2d 340, 842 P.2d 1100];

“In Stringer, the United States Supreme Court held that ‘if a State uses aggravating factors in deciding who shall be eligible for the death penalty or who shall receive the death penalty, it cannot use factors which as a practical matter fail to guide the sentencer’s discretion’ in contravention of the Eighth Amendment. [Citation.] It explained: ‘Although our precedents do not require the use of aggravating factors, they have not permitted a State in which aggravating factors are decisive to use factors of vague or imprecise content. A vague aggravating factor employed for the purpose of determining whether a defendant is eligible for the death penalty fails to channel the sentencer’s discretion. A vague aggravating factor used in the weighing process is in a sense worse, for it creates the risk that the jury will treat the defendant as more deserving of the death penalty than he might otherwise be by relying upon the existence of an illusory circumstance.’ [Citation.] Of course, California uses ‘aggravating factors’—labeled ‘special circumstances’ [citation]—to determine death eligibility. It also uses ‘aggravating factors’—bearing that very label [citation]—to decide between life and death.

“A narrow Stringer challenge could specifically attack any one or more of the factors set out in the standard jury instruction on the determination of *597penalty as vague and, for that reason, likely to invite an arbitrary and capricious choice of punishment in violation of the Eighth Amendment. . . .

“A broader Stringer challenge could generally attack the standard jury instruction on the determination of penalty as vague at its very core and, for that reason, highly likely to invite an arbitrary and capricious choice of punishment in violation of the Eighth Amendment.” (People v. Proctor, supra, ante, at pp. 566-567 (dis. opn. of Mosk, J.).)

Defendant’s Stringer challenge is narrow. He attacks factor (a), the “circumstances of the crime”; factor (b), the “presence or absence of criminal activity by the defendant which involved the use or attempted use of force or violence or the express or implied threat to use force or violence”; and factor (i), the “age of the defendant at the time of the crime.”

At the outset, the majority “[a]ssum[e] without deciding” that the factors set out in the standard jury instruction on the determination of penalty are subject to attack for vagueness under Stringer. (Maj. opn., ante, at p. 594.) That “assumption” is unnecessary. The United States Supreme Court has all but expressly decided the issue. The factors are subject to attack. (See Bacigalupo v. California (1992) 506 U.S. _ [121 L.Ed.2d 5, 113 S.Ct. 32], vacating and remanding People v. Bacigalupo (1991) 1 Cal.4th 103 [2 Cal.Rptr.2d 335, 820 P.2d 559], for further consideration in light of Stringer v. Black, supra, 503 U.S. _ [117 L.Ed.2d 367, 112 S.Ct. 1130].)

The majority then proceed to reject defendant’s Stringer challenge. They do so because they themselves do not find factors (a), (b), and (i) to be vague. But “[w]hat is dispositive is not what jurists on appellate courts may announce, but what laypersons on juries may understand.” (People v. Proctor, ante, supra, at p. 567 (dis. opn. of Mosk, J.).) In this regard, consider factor (i). We have held that “age” can be aggravating or mitigating or neither depending on the peculiar facts of the individual case. (E.g., People v. Lucky (1988) 45 Cal.3d 259, 302 [247 Cal.Rptr. 1, 753 P.2d 1052].) Whether a juror would come to the same conclusion, however, is another matter.

In the course of their analysis, the majority appear to suggest that if a factor is not vague, it necessarily passes muster under the United States Constitution, even if it “leave[s] the sentencer free to evaluate the evidence in accordance with his or her own subjective values.” (Maj. opn., ante, at p. 595.) Such a proposition would be too broad. The requirements imposed by the federal charter are substantive as well as formal. Thus, a factor, no matter *598how clearly defined, is constitutionally invalid if, for example, it authorizes or allows a juror to “attach[] the ‘aggravating’ label to” matters “that are constitutionally impermissible or totally irrelevant to the sentencing process, such as . . .the race, religion, or political affiliation of the defendant” or “to conduct that actually should militate in favor of a lesser penalty, such as perhaps the defendant’s mental illness.” (Zant v. Stephens (1983) 462 U.S. 862, 885 [77 L.Ed.2d 235, 255, 103 S.Ct. 2733].)

With that said, I note that a successful Stringer challenge does not automatically result in reversal. As Stringer itself makes plain, an instruction incorporating a vague factor is subject to harmless-error analysis. (503 U.S. at pp. _, _ [117 L.Ed.2d at pp. 379, 383, 112 S.Ct. at pp. 1137,1140].) On this record, even if one or more of the factors defendant attacks are deemed vague, no prejudice appears.

In conclusion, having found no reversible error or other defect, I concur in the judgment.