Robertson instruction in California

1996If I were not of the view that the appeal should be dismissed, I would be inclined to set aside defendant’s sentence of death for “Robertson error” (People v. Robertson (1982) 33 Cal.3d 21 [ 188 Cal.Rptr. 77 , 655 P.2d 279 ]), that is, the superior court’s failure to instruct the jury that the prosecution bore the burden of proving other crimes at the penalty phase beyond a reasonable doubt.

1996If I were not of the view that the appeal should be dismissed, I would be inclined to set aside defendant’s sentence of death for “Robertson error” (People v. Robertson (1982) 33 Cal.3d 21 [ 188 Cal.Rptr. 77 , 655 P.2d 279 ]), that is, the superior court’s failure to instruct the jury that the prosecution bore the burden of proving other crimes at the penalty phase beyond a reasonable doubt.

2010(See People v. Lang, supra, 49 Cal.3d at p. 1040 ; People v. Poggi (1988) 45 Cal.3d 306, 341 [ 246 Cal.Rptr. 886 , 753 P.2d 1082 ].) Even if the trial court's failure to provide sua sponte a Robertson instruction constituted error, any error was harmless because it is not reasonably probable that providing the omitted instruction would have altered the verdict. ( People v. Brown (1988) 46 Cal.3d 432, 446-449 [ 250 Cal.Rptr. 604 , 758 P.2d 1135 ]; People v. Avena (1996) 13 Cal.4th 394, 433-435 [ 53 Cal.Rptr.2d 301 , 916 P.2d 1000 ].) Defendant did not argue during the penalty phase of his trial

2010(See People v. Lang, supra, 49 Cal.3d at p. 1040 ; People v. Poggi (1988) 45 Cal.3d 306, 341 [ 246 Cal.Rptr. 886 , 753 P.2d 1082 ].) Even if the trial court's failure to provide sua sponte a Robertson instruction constituted error, any error was harmless because it is not reasonably probable that providing the omitted instruction would have altered the verdict. ( People v. Brown (1988) 46 Cal.3d 432, 446-449 [ 250 Cal.Rptr. 604 , 758 P.2d 1135 ]; People v. Avena (1996) 13 Cal.4th 394, 433-435 [ 53 Cal.Rptr.2d 301 , 916 P.2d 1000 ].) Defendant did not argue during the penalty phase of his trial

1996(People v. Brown, supra, 46 Cal.3d at pp. 446-449; see People v. Wright, supra, 52 Cal.3d at p. 438 [applying the Brown “reasonable possibility” standard].) Despite this past authority, defendant contends that failure to instruct a penalty phase jury other crimes must be proved beyond a reasonable doubt (so-called Robertson error) is not subject to a harmless error analysis.

1996(People v. Brown, supra, 46 Cal.3d at pp. 446-449; see People v. Wright, supra, 52 Cal.3d at p. 438 [applying the Brown “reasonable possibility” standard].) Despite this past authority, defendant contends that failure to instruct a penalty phase jury other crimes must be proved beyond a reasonable doubt (so-called Robertson error) is not subject to a harmless error analysis.

1996(Clemons, supra, 494 U.S. at p. 741 [108 L.Ed.2d at pp. 733-734].) Nor does Hicks, supra, 447 U.S. 343 , require us to reverse the judgment for Robertson error.

1996(Clemons, supra, 494 U.S. at p. 741 [108 L.Ed.2d at pp. 733-734].) Nor does Hicks, supra, 447 U.S. 343 , require us to reverse the judgment for Robertson error.

1996(People v. Breaux (1991) 1 Cal.4th 281, 322 [ 3 Cal.Rptr.2d 81 , 821 P.2d 585 ] (hereafter Breaux); People v. Jennings, supra, 46 Cal.3d 963, 988 .) 5.

1996(People v. Breaux (1991) 1 Cal.4th 281, 322 [ 3 Cal.Rptr.2d 81 , 821 P.2d 585 ] (hereafter Breaux); People v. Jennings, supra, 46 Cal.3d 963, 988 .) 5.

1996(People v. Pinholster, supra, 1 Cal.4th at p. 965.) The homicide of Alfaro was the most serious of the three incidents affected by the Robertson error.

1996(People v. Pinholster, supra, 1 Cal.4th at p. 965.) The homicide of Alfaro was the most serious of the three incidents affected by the Robertson error.

1996In Hicks , the United States Supreme Court held that, under certain circumstances, when a state provides that the punishment for a criminal act shall be in the discretion of the trial jury, the defendant may have “a substantial and legitimate expectation that he will be deprived of . . . liberty only to the extent determined by the jury in the exercise of its statutory discretion [citation] and that liberty interest is one that the Fourteenth Amendment preserves against arbitrary deprivation by the State.” (Hicks, supra, 447 U.S. at p. 346 [ 65 L.Ed.2d at p. 180 ].) As we recently noted, howev

1996In Hicks , the United States Supreme Court held that, under certain circumstances, when a state provides that the punishment for a criminal act shall be in the discretion of the trial jury, the defendant may have “a substantial and legitimate expectation that he will be deprived of . . . liberty only to the extent determined by the jury in the exercise of its statutory discretion [citation] and that liberty interest is one that the Fourteenth Amendment preserves against arbitrary deprivation by the State.” (Hicks, supra, 447 U.S. at p. 346 [ 65 L.Ed.2d at p. 180 ].) As we recently noted, howev

1996(Clemons, supra, 494 U.S. at p. 741 [108 L.Ed.2d at pp. 733-734].) Nor does Hicks, supra, 447 U.S. 343 , require us to reverse the judgment for Robertson error.

1996(Clemons, supra, 494 U.S. at p. 741 [108 L.Ed.2d at pp. 733-734].) Nor does Hicks, supra, 447 U.S. 343 , require us to reverse the judgment for Robertson error.

1990As noted in Gates, supra, 43 Cal.3d at page 1202, footnote 13, a Robertson instruction should be given where the penalty phase evidence discloses a crime in addition to the crime of which the defendant was convicted.

1990As noted in Gates, supra, 43 Cal.3d at page 1202, footnote 13, a Robertson instruction should be given where the penalty phase evidence discloses a crime in addition to the crime of which the defendant was convicted.

1990In any case, as in our conclusion regarding the “lack of notice” argument pertaining to the nonstatutory aggravating evidence, we have already determined that such evidence was improperly admitted under Boyd {supra, 38 Cal. 3d 762 ), but we have concluded on this record that its erroneous admission could not in reasonable possibility have prejudiced the penalty verdict. {Ante, at p. 429; People v. Brown, supra, 46 Cal.3d at p. 448.) It follows that the failure to give a Robertson instruction sua sponte, pertaining to the same evidence, was likewise nonprejudicial.

1990In any case, as in our conclusion regarding the “lack of notice” argument pertaining to the nonstatutory aggravating evidence, we have already determined that such evidence was improperly admitted under Boyd {supra, 38 Cal. 3d 762 ), but we have concluded on this record that its erroneous admission could not in reasonable possibility have prejudiced the penalty verdict. {Ante, at p. 429; People v. Brown, supra, 46 Cal.3d at p. 448.) It follows that the failure to give a Robertson instruction sua sponte, pertaining to the same evidence, was likewise nonprejudicial.

2013(See People v. Guion, supra, 213 Cal.App.4th at p. 1436 [“statutory elements of former section 529(3)—false personation and the commission of an additional act that might expose the person who is falsely impersonated to liability or benefit the defendant—do not include all of the elements of section 148.9”]; Robertson, 223 Cal.App.3d at p. 1281 [section 148.9 did not bar former section 529(3) prosecution where section 529 had numerous elements not in section 148.9, including “other act” element, while section 148.9 requires only “the act of impersonation before a peace officer upon a lawful de

2013(See People v. Guion, supra, 213 Cal.App.4th at p. 1436 [“statutory elements of former section 529(3)—false personation and the commission of an additional act that might expose the person who is falsely impersonated to liability or benefit the defendant—do not include all of the elements of section 148.9”]; Robertson, 223 Cal.App.3d at p. 1281 [section 148.9 did not bar former section 529(3) prosecution where section 529 had numerous elements not in section 148.9, including “other act” element, while section 148.9 requires only “the act of impersonation before a peace officer upon a lawful de

2010We do not find People v. Rich instructive here because in that case most of the contested other crimes evidence was introduced by the defendant in the guilt phase of the trial to establish diminished capacity. ( People v. Rich , supra, 33 Cal.3d at pp. 1121-1122.) Here, the contested evidence was introduced during the penalty retrial, and the purpose for which it was introduced was not made as clear as in People v. Rich . (19) Nonetheless, we have concluded that a court's failure to provide a Robertson instruction does not constitute error where, as here, "the prosecutor did not argue that any

2010We do not find People v. Rich instructive here because in that case most of the contested other crimes evidence was introduced by the defendant in the guilt phase of the trial to establish diminished capacity. ( People v. Rich , supra, 33 Cal.3d at pp. 1121-1122.) Here, the contested evidence was introduced during the penalty retrial, and the purpose for which it was introduced was not made as clear as in People v. Rich . (19) Nonetheless, we have concluded that a court's failure to provide a Robertson instruction does not constitute error where, as here, "the prosecutor did not argue that any

2010(See People v. Lang, supra, 49 Cal.3d at p. 1040 ; People v. Poggi (1988) 45 Cal.3d 306, 341 [ 246 Cal.Rptr. 886 , 753 P.2d 1082 ].) Even if the trial court's failure to provide sua sponte a Robertson instruction constituted error, any error was harmless because it is not reasonably probable that providing the omitted instruction would have altered the verdict. ( People v. Brown (1988) 46 Cal.3d 432, 446-449 [ 250 Cal.Rptr. 604 , 758 P.2d 1135 ]; People v. Avena (1996) 13 Cal.4th 394, 433-435 [ 53 Cal.Rptr.2d 301 , 916 P.2d 1000 ].) Defendant did not argue during the penalty phase of his trial

2010(See People v. Lang, supra, 49 Cal.3d at p. 1040 ; People v. Poggi (1988) 45 Cal.3d 306, 341 [ 246 Cal.Rptr. 886 , 753 P.2d 1082 ].) Even if the trial court's failure to provide sua sponte a Robertson instruction constituted error, any error was harmless because it is not reasonably probable that providing the omitted instruction would have altered the verdict. ( People v. Brown (1988) 46 Cal.3d 432, 446-449 [ 250 Cal.Rptr. 604 , 758 P.2d 1135 ]; People v. Avena (1996) 13 Cal.4th 394, 433-435 [ 53 Cal.Rptr.2d 301 , 916 P.2d 1000 ].) Defendant did not argue during the penalty phase of his trial

2010(See People v. Lang, supra, 49 Cal.3d at p. 1040 ; People v. Poggi (1988) 45 Cal.3d 306, 341 [ 246 Cal.Rptr. 886 , 753 P.2d 1082 ].) Even if the trial court's failure to provide sua sponte a Robertson instruction constituted error, any error was harmless because it is not reasonably probable that providing the omitted instruction would have altered the verdict. ( People v. Brown (1988) 46 Cal.3d 432, 446-449 [ 250 Cal.Rptr. 604 , 758 P.2d 1135 ]; People v. Avena (1996) 13 Cal.4th 394, 433-435 [ 53 Cal.Rptr.2d 301 , 916 P.2d 1000 ].) Defendant did not argue during the penalty phase of his trial

2010(See People v. Lang, supra, 49 Cal.3d at p. 1040 ; People v. Poggi (1988) 45 Cal.3d 306, 341 [ 246 Cal.Rptr. 886 , 753 P.2d 1082 ].) Even if the trial court's failure to provide sua sponte a Robertson instruction constituted error, any error was harmless because it is not reasonably probable that providing the omitted instruction would have altered the verdict. ( People v. Brown (1988) 46 Cal.3d 432, 446-449 [ 250 Cal.Rptr. 604 , 758 P.2d 1135 ]; People v. Avena (1996) 13 Cal.4th 394, 433-435 [ 53 Cal.Rptr.2d 301 , 916 P.2d 1000 ].) Defendant did not argue during the penalty phase of his trial

1992(People v. Caro (1988) 46 Cal.3d 1035, 1057 [ 251 Cal.Rptr. 757 , 761 P.2d 680 ]; People v. Robertson (1982) 33 Cal.3d 21, 53 [ 188 Cal.Rptr. 77 , 655 P.2d 279 ] [plur. opn.], 60 [conc. opn. of Broussard, J.].) In particular, they point to evidence of 10 alleged other crimes that the jury could have erroneously concluded were aggravating factors. 35 Many of these alleged “other crimes,” however, were so trivial or irrelevant to a determination of an appropriate penalty that the jury’s consideration of them was harmless even if we assume the trial court should have delivered a Robertson instruc

1992(People v. Caro (1988) 46 Cal.3d 1035, 1057 [ 251 Cal.Rptr. 757 , 761 P.2d 680 ]; People v. Robertson (1982) 33 Cal.3d 21, 53 [ 188 Cal.Rptr. 77 , 655 P.2d 279 ] [plur. opn.], 60 [conc. opn. of Broussard, J.].) In particular, they point to evidence of 10 alleged other crimes that the jury could have erroneously concluded were aggravating factors. 35 Many of these alleged “other crimes,” however, were so trivial or irrelevant to a determination of an appropriate penalty that the jury’s consideration of them was harmless even if we assume the trial court should have delivered a Robertson instruc

1992Absent improper argument, jurors are unlikely to give the circumstances of the current crime greater weight in the penalty determination simply because they appear to be included in two separate categories of statutory `aggravation.'" ( Ibid.; People v. Miller (1990) 50 Cal.3d 954, 1009 [ 269 Cal. Rptr. 492 , 790 P.2d 1289 ].) Defendants do not direct our attention to any improper argument in this regard and we have found none.

1992Absent improper argument, jurors are unlikely to give the circumstances of the current crime greater weight in the penalty determination simply because they appear to be included in two separate categories of statutory `aggravation.'" ( Ibid.; People v. Miller (1990) 50 Cal.3d 954, 1009 [ 269 Cal. Rptr. 492 , 790 P.2d 1289 ].) Defendants do not direct our attention to any improper argument in this regard and we have found none.

1992Significantly, the prosecutor mentioned the threats in connection with his summary of the circumstances of the present crime, i.e., under section 190.3, factor (a). [36] He did not explicitly invite the jury to consider the threats as evidence of a separate *205 aggravating factor under factor (b). [37] To the extent a Robertson instruction was required, its omission was harmless. ( Brown, supra, 46 Cal.3d at pp. 446-449.) (ii) Overlap between Factors (a) and (b) Defendants argue the trial court erred by failing to instruct the jury that factor (b) referred to crimes of violence other than tho

1990(Morales, supra, 48 Cal.3d at p. 566; Gates, supra, 43 Cal.3d at p. 1202.) Defendant correctly points out, however, that the evidence respecting the Maruyama burglary extended beyond the mere fact of his conviction of burglary, and included evidence regarding his false imprisonment and robbery of the elderly victim.

1990(Morales, supra, 48 Cal.3d at p. 566; Gates, supra, 43 Cal.3d at p. 1202.) Defendant correctly points out, however, that the evidence respecting the Maruyama burglary extended beyond the mere fact of his conviction of burglary, and included evidence regarding his false imprisonment and robbery of the elderly victim.