People v. Ghent

BROUSSARD, J.

I concur in the judgment, but write separately to address two related penalty phase issues.

I.

The prosecutor in his penalty phase argument reviewed the statutory factors, and properly pointed out that there was no evidence to support certain factors which, if present, would be mitigating. In the course of reviewing the evidence relating to the last factor (factor (j) of the 1977 law—any matter which extenuates the gravity of the crime) he stated that “[i]f you look at these factors every one of them aggravates the crime.” He *782thus argued that the absence of a mitigating factor constituted an aggravating factor.

That argument was erroneous. As we explained in People v. Rodriguez (1986) 42 Cal.3d 730, 789 [230 Cal.Rptr. 667, 726 P.2d 113], “the purpose of ‘aggravating’ and ‘mitigating’ factors is to assess the seriousness of a capital crime in relation to others of the same general character. The mere absence of a mitigating element may weigh against a finding that the instant offense is less serious than ‘normal,’ and thus especially deserving of mercy, but it does not suggest that the crime is more serious than ‘normal’ and thus especially deserving of death.” (See also People v. Davenport (1985) 41 Cal.3d 247, 288-290 [221 Cal.Rptr. 794, 710 P.2d 861].) The fact that the present case was tried before Rodriguez and Davenport were filed is immaterial. We cannot affirm a death penalty if there exists a reasonable possibility that the prosecutor’s erroneous argument, in combination with the court’s instructions, affected the result. (See People v. Allen (1986) 42 Cal.3d 1222, 1281 [232 Cal.Rptr. 849, 729 P.2d 115]; People v. Phillips (1985) 41 Cal.3d 29, 83 [222 Cal.Rptr. 127, 711 P.2d 423].)

We have seen appeals in which the prosecutor put great emphasis upon the argument that absence of evidence of a mitigating factor rendered it aggravating. Prosecutors have even listed the factors on charts or blackboards, and tallied the score: nine to two in favor of aggravation, or whatever the count happened to be. Such tactics present a serious danger that the jurors will take into their deliberation a misleading impression that the case before them is not an ordinary murder (as horrible as such may be) but a particularly aggravated murder, one for which the statute especially prescribes the death penalty. That kind of misimpression is likely to affect the verdict. The danger is particularly great if the judge or prosecutor has given the jurors the incorrect impression that they have an absolute duty to return the death penalty if aggravating factors outweigh mitigating factors.

The present case, however, involves a far less serious error. We have only a single remark, unemphasized, in the course of the prosecutor’s argument. This case was tried, moreover, under the 1977 law, and thus under jury instructions which explained that the statutory aggravating and mitigating factors function to guide, not to direct, the verdict. Under these circumstances, I agree with the majority that the error is not reversible.

II.

Factor (c) in former section 190.3 asked the penalty jury to consider whether defendant committed the crime under “extreme mental or emotional disturbance.” (The same language appears in factor (d) of the present *783law.) The majority recognize that defendant is entitled to have the jury consider his mental or emotional disturbance as a mitigating factor, whether or not it qualifies as “extreme.” They assert that the “catchall” provision (factor (j) of the 1977 law; factor (k) of the present law) is sufficient to permit the jury to consider such matters.

I agree that factors (j) and (k) as construed in our cases permit, indeed require, the jury to consider evidence of defendant’s mental or emotional disturbance. (See People v. Easley (1983) 34 Cal.3d 858, 878 [196 Cal.Rptr. 309, 671 P.2d 813]; People v. Frierson (1979) 25 Cal.3d 142, 178 [158 Cal.Rptr. 281, 599 P.2d 587].) There remains, however, a danger that if the jury are simply instructed in the statutory language, they will believe the specific language of factors (c) or (d) controls the more general language of (c) or (k), and conclude that they should not consider evidence of nonextreine disturbance. Thus if the defense presents evidence of mental or emotional disturbance which might not qualify as extreme, the court should not give an instruction which could be misconstrued to bar consideration of that evidence.

Before we could reverse a death verdict because of the risk that the jury misconstrued factor (c), however, we would need some indication that the risk is a significant one. We might, find such indication in arguments of counsel implying that nonextreme mental or emotional disturbance could not be considered, in rulings by the court to that effect, or in inquiries by the jury suggesting confusion or misunderstanding. No such indicia appear in the present record. I therefore would find no reasonable possibility that the instructions concerning factors (c) and (j) misled the jury.

Appellant’s petition for a rehearing was denied October 1, 1987.