Skipper error in California

2015Counsel referred to the holding of Skipper v. South Carolina (1986) 476 U.S. 1, 5 [ 90 L.Ed.2d 1 , 106 S.Ct. 1669 ] (Skipper): “[E]vidence that the defendant would not pose a danger if spared (but incarcerated) must be considered potentially mitigating” and thus “may not be excluded from the sentencer’s consideration.” Counsel also relied on People v. Fudge (1994) 7 Cal.4th 1075, 1117 [ 31 Cal.Rptr.2d 321 , 875 P.2d 36 ] (Fudge), where this court found Skipper error in the exclusion of expert testimony that the defendant was “a likely candidate to lead a productive and nonviolent life in priso

2015Counsel referred to the holding of Skipper v. South Carolina (1986) 476 U.S. 1, 5 [ 90 L.Ed.2d 1 , 106 S.Ct. 1669 ] (Skipper): “[E]vidence that the defendant would not pose a danger if spared (but incarcerated) must be considered potentially mitigating” and thus “may not be excluded from the sentencer’s consideration.” Counsel also relied on People v. Fudge (1994) 7 Cal.4th 1075, 1117 [ 31 Cal.Rptr.2d 321 , 875 P.2d 36 ] (Fudge), where this court found Skipper error in the exclusion of expert testimony that the defendant was “a likely candidate to lead a productive and nonviolent life in priso

1994(Cf. People v. Lucero (1988) 44 Cal.3d 1006, 1026 [ 245 Cal.Rptr. 185 , 750 P.2d 1342 ] [it was Skipper error to prevent mental health professional from giving opinion on whether the defendant was a recidivist] [hereafter Lucero]; see also People v. McLain (1988) 46 Cal.3d 97, 108 [ 249 Cal.Rptr. 630 , 757 P.2d 569 ] [prison psychologist; foundational issues waived by the parties].) The People argue that several factors undermined Wilson’s qualifications as an expert.

1994(Cf. People v. Lucero (1988) 44 Cal.3d 1006, 1026 [ 245 Cal.Rptr. 185 , 750 P.2d 1342 ] [it was Skipper error to prevent mental health professional from giving opinion on whether the defendant was a recidivist] [hereafter Lucero]; see also People v. McLain (1988) 46 Cal.3d 97, 108 [ 249 Cal.Rptr. 630 , 757 P.2d 569 ] [prison psychologist; foundational issues waived by the parties].) The People argue that several factors undermined Wilson’s qualifications as an expert.

1994(Skipper, supra, 476 U.S. at p. 5 [ 90 L.Ed.2d at p. 7 ]; Eddings v. Oklahoma (1982) 455 U.S. 104, 110 [ 71 L.Ed.2d 1, 8 , 102 S.Ct. 869 ]; Lockett v. Ohio (1978) 438 U.S. 586, 604 [ 57 L.Ed.2d 973, 989-990 , 98 S.Ct. 2954 ].) Exclusion of such evidence, called Skipper error, does not automatically require reversal, but is instead subject to the standard of review announced in Chapman v. California, supra, 386 U.S. 18 , that is, the error is reversible unless it is harmless beyond a reasonable doubt.

1994(Skipper, supra, 476 U.S. at p. 5 [ 90 L.Ed.2d at p. 7 ]; Eddings v. Oklahoma (1982) 455 U.S. 104, 110 [ 71 L.Ed.2d 1, 8 , 102 S.Ct. 869 ]; Lockett v. Ohio (1978) 438 U.S. 586, 604 [ 57 L.Ed.2d 973, 989-990 , 98 S.Ct. 2954 ].) Exclusion of such evidence, called Skipper error, does not automatically require reversal, but is instead subject to the standard of review announced in Chapman v. California, supra, 386 U.S. 18 , that is, the error is reversible unless it is harmless beyond a reasonable doubt.

2012(See People v. Brown, supra, 31 Cal.4th at pp. 576-577, 578 [applying Chapman v. California (1967) 386 U.S. 18 [ 17 L.Ed.2d 705 , 87 S.Ct. 824 ] harmless error standard to Skipper error]; Hughes, supra, 27 Cal.4th at pp. 397-398.) Lingering doubt was a cornerstone of the defense’s penalty phase strategy, and counsel argued it at length during closing argument.

2012(See People v. Brown, supra, 31 Cal.4th at pp. 576-577, 578 [applying Chapman v. California (1967) 386 U.S. 18 [ 17 L.Ed.2d 705 , 87 S.Ct. 824 ] harmless error standard to Skipper error]; Hughes, supra, 27 Cal.4th at pp. 397-398.) Lingering doubt was a cornerstone of the defense’s penalty phase strategy, and counsel argued it at length during closing argument.

2015Counsel referred to the holding of Skipper v. South Carolina (1986) 476 U.S. 1, 5 [ 90 L.Ed.2d 1 , 106 S.Ct. 1669 ] (Skipper): “[E]vidence that the defendant would not pose a danger if spared (but incarcerated) must be considered potentially mitigating” and thus “may not be excluded from the sentencer’s consideration.” Counsel also relied on People v. Fudge (1994) 7 Cal.4th 1075, 1117 [ 31 Cal.Rptr.2d 321 , 875 P.2d 36 ] (Fudge), where this court found Skipper error in the exclusion of expert testimony that the defendant was “a likely candidate to lead a productive and nonviolent life in priso

2015Counsel referred to the holding of Skipper v. South Carolina (1986) 476 U.S. 1, 5 [ 90 L.Ed.2d 1 , 106 S.Ct. 1669 ] (Skipper): “[E]vidence that the defendant would not pose a danger if spared (but incarcerated) must be considered potentially mitigating” and thus “may not be excluded from the sentencer’s consideration.” Counsel also relied on People v. Fudge (1994) 7 Cal.4th 1075, 1117 [ 31 Cal.Rptr.2d 321 , 875 P.2d 36 ] (Fudge), where this court found Skipper error in the exclusion of expert testimony that the defendant was “a likely candidate to lead a productive and nonviolent life in priso

2015Code, § 354, subd. (a) [error in exclusion of evidence is not reversible unless “[t]he substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by any other means ...”]; People v. Lightsey (2012) 54 Cal.4th 668, 727 [ 143 Cal.Rptr.3d 589 , 279 P.3d 1072 ] [abuse of discretion in sustaining objection could not be found when defendant made no offer of proof as to why witness should have been permitted to answer]; People v. Ramos (1997) 15 Cal.4th 1133, 1178 [ 64 Cal.Rptr.2d 892 , 938 P.2d 950 ] [defendant bears burden of

2015Code, § 354, subd. (a) [error in exclusion of evidence is not reversible unless “[t]he substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by any other means ...”]; People v. Lightsey (2012) 54 Cal.4th 668, 727 [ 143 Cal.Rptr.3d 589 , 279 P.3d 1072 ] [abuse of discretion in sustaining objection could not be found when defendant made no offer of proof as to why witness should have been permitted to answer]; People v. Ramos (1997) 15 Cal.4th 1133, 1178 [ 64 Cal.Rptr.2d 892 , 938 P.2d 950 ] [defendant bears burden of

2015Code, § 354, subd. (a) [error in exclusion of evidence is not reversible unless “[t]he substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by any other means ...”]; People v. Lightsey (2012) 54 Cal.4th 668, 727 [ 143 Cal.Rptr.3d 589 , 279 P.3d 1072 ] [abuse of discretion in sustaining objection could not be found when defendant made no offer of proof as to why witness should have been permitted to answer]; People v. Ramos (1997) 15 Cal.4th 1133, 1178 [ 64 Cal.Rptr.2d 892 , 938 P.2d 950 ] [defendant bears burden of

2015Code, § 354, subd. (a) [error in exclusion of evidence is not reversible unless “[t]he substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by any other means ...”]; People v. Lightsey (2012) 54 Cal.4th 668, 727 [ 143 Cal.Rptr.3d 589 , 279 P.3d 1072 ] [abuse of discretion in sustaining objection could not be found when defendant made no offer of proof as to why witness should have been permitted to answer]; People v. Ramos (1997) 15 Cal.4th 1133, 1178 [ 64 Cal.Rptr.2d 892 , 938 P.2d 950 ] [defendant bears burden of

2015Code, § 354, subd. (a) [error in exclusion of evidence is not reversible unless “[t]he substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by any other means ...”]; People v. Lightsey (2012) 54 Cal.4th 668, 727 [ 143 Cal.Rptr.3d 589 , 279 P.3d 1072 ] [abuse of discretion in sustaining objection could not be found when defendant made no offer of proof as to why witness should have been permitted to answer]; People v. Ramos (1997) 15 Cal.4th 1133, 1178 [ 64 Cal.Rptr.2d 892 , 938 P.2d 950 ] [defendant bears burden of

2015Code, § 354, subd. (a) [error in exclusion of evidence is not reversible unless “[t]he substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by any other means ...”]; People v. Lightsey (2012) 54 Cal.4th 668, 727 [ 143 Cal.Rptr.3d 589 , 279 P.3d 1072 ] [abuse of discretion in sustaining objection could not be found when defendant made no offer of proof as to why witness should have been permitted to answer]; People v. Ramos (1997) 15 Cal.4th 1133, 1178 [ 64 Cal.Rptr.2d 892 , 938 P.2d 950 ] [defendant bears burden of

2015Code, § 354, subd. (a) [error in exclusion of evidence is not reversible unless “[t]he substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by any other means ...”]; People v. Lightsey (2012) 54 Cal.4th 668, 727 [ 143 Cal.Rptr.3d 589 , 279 P.3d 1072 ] [abuse of discretion in sustaining objection could not be found when defendant made no offer of proof as to why witness should have been permitted to answer]; People v. Ramos (1997) 15 Cal.4th 1133, 1178 [ 64 Cal.Rptr.2d 892 , 938 P.2d 950 ] [defendant bears burden of

2015Code, § 354, subd. (a) [error in exclusion of evidence is not reversible unless “[t]he substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by any other means”]; People v. Lightsey (2012) 54 Cal.4th 668, 727 [abuse of discretion in sustaining objection could not be found when defendant made no offer of proof as to why witness should have been permitted to answer]; People v. Ramos (1997) 15 Cal.4th 1133, 1178 [defendant bears burden of establishing foundation for mitigating evidence]; People v. Whitt (1990) 51 Cal.3

2015Code, § 354, subd. (a) [error in exclusion of evidence is not reversible unless “[t]he substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by any other means ...”]; People v. Lightsey (2012) 54 Cal.4th 668, 727 [ 143 Cal.Rptr.3d 589 , 279 P.3d 1072 ] [abuse of discretion in sustaining objection could not be found when defendant made no offer of proof as to why witness should have been permitted to answer]; People v. Ramos (1997) 15 Cal.4th 1133, 1178 [ 64 Cal.Rptr.2d 892 , 938 P.2d 950 ] [defendant bears burden of

2015Code, § 354, subd. (a) [error in exclusion of evidence is not reversible unless “[t]he substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by any other means”]; People v. Lightsey (2012) 54 Cal.4th 668, 727 [abuse of discretion in sustaining objection could not be found when defendant made no offer of proof as to why witness should have been permitted to answer]; People v. Ramos (1997) 15 Cal.4th 1133, 1178 [defendant bears burden of establishing foundation for mitigating evidence]; People v. Whitt (1990) 51 Cal.3

1990(Boyde v. California (1990) 494 U.S. 370 , _ [ 108 L.Ed.2d 316, 329 , 110 S.Ct. 1190, 1198 ].) To conclude that Skipper error has in fact occurred, however, does not end the analysis.

1990(Boyde v. California (1990) 494 U.S. 370 , _ [ 108 L.Ed.2d 316, 329 , 110 S.Ct. 1190, 1198 ].) To conclude that Skipper error has in fact occurred, however, does not end the analysis.

2015Code, § 354, subd. (a) [error in exclusion of evidence is not reversible unless “[t]he substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by any other means”]; People v. Lightsey (2012) 54 Cal.4th 668, 727 [abuse of discretion in sustaining objection could not be found when defendant made no offer of proof as to why witness should have been permitted to answer]; People v. Ramos (1997) 15 Cal.4th 1133, 1178 [defendant bears burden of establishing foundation for mitigating evidence]; People v. Whitt (1990) 51 Cal.3

2015Code, § 354, subd. (a) [error in exclusion of evidence is not reversible unless “[t]he substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by any other means ...”]; People v. Lightsey (2012) 54 Cal.4th 668, 727 [ 143 Cal.Rptr.3d 589 , 279 P.3d 1072 ] [abuse of discretion in sustaining objection could not be found when defendant made no offer of proof as to why witness should have been permitted to answer]; People v. Ramos (1997) 15 Cal.4th 1133, 1178 [ 64 Cal.Rptr.2d 892 , 938 P.2d 950 ] [defendant bears burden of

2012(People v. Hughes (2002) 27 Cal.4th 287, 397 [ 116 Cal.Rptr.2d 401 , 39 P.3d 432 ] (Hughes) [claim of Skipper error was “waived” because “defense counsel expressly acceded to the trial court’s limitation on the evidence . . .”].) Even if defendant had preserved a challenge to the trial court’s ruling, we would conclude any error in preventing him from making a public statement to the victim’s family was not prejudicial.

2012(People v. Hughes (2002) 27 Cal.4th 287, 397 [ 116 Cal.Rptr.2d 401 , 39 P.3d 432 ] (Hughes) [claim of Skipper error was “waived” because “defense counsel expressly acceded to the trial court’s limitation on the evidence . . .”].) Even if defendant had preserved a challenge to the trial court’s ruling, we would conclude any error in preventing him from making a public statement to the victim’s family was not prejudicial.

1994We found the Skipper error harmless beyond a reasonable doubt, concluding the facts of the case, coupled with the evidence of prior criminal acts, clearly outweighed the other mitigating evidence. “[In light of] the circumstances of the offenses, including . . . defendant’s pattern of violent sexual conduct, ... we find the court’s failure ... to weigh in mitigation defendant’s lack of future dangerousness could not have affected its penalty determination and is harmless beyond a reasonable doubt.” (Robertson, supra, 48 Cal.3d at p. 57, italics added.) As in Robertson, supra, we find the circu

1994We found the Skipper error harmless beyond a reasonable doubt, concluding the facts of the case, coupled with the evidence of prior criminal acts, clearly outweighed the other mitigating evidence. “[In light of] the circumstances of the offenses, including . . . defendant’s pattern of violent sexual conduct, ... we find the court’s failure ... to weigh in mitigation defendant’s lack of future dangerousness could not have affected its penalty determination and is harmless beyond a reasonable doubt.” (Robertson, supra, 48 Cal.3d at p. 57, italics added.) As in Robertson, supra, we find the circu

1994(Skipper, supra, 476 U.S. at p. 5 [ 90 L.Ed.2d at p. 7 ]; Eddings v. Oklahoma (1982) 455 U.S. 104, 110 [ 71 L.Ed.2d 1, 8 , 102 S.Ct. 869 ]; Lockett v. Ohio (1978) 438 U.S. 586, 604 [ 57 L.Ed.2d 973, 989-990 , 98 S.Ct. 2954 ].) Exclusion of such evidence, called Skipper error, does not automatically require reversal, but is instead subject to the standard of review announced in Chapman v. California, supra, 386 U.S. 18 , that is, the error is reversible unless it is harmless beyond a reasonable doubt.

1994(Skipper, supra, 476 U.S. at p. 5 [ 90 L.Ed.2d at p. 7 ]; Eddings v. Oklahoma (1982) 455 U.S. 104, 110 [ 71 L.Ed.2d 1, 8 , 102 S.Ct. 869 ]; Lockett v. Ohio (1978) 438 U.S. 586, 604 [ 57 L.Ed.2d 973, 989-990 , 98 S.Ct. 2954 ].) Exclusion of such evidence, called Skipper error, does not automatically require reversal, but is instead subject to the standard of review announced in Chapman v. California, supra, 386 U.S. 18 , that is, the error is reversible unless it is harmless beyond a reasonable doubt.

1994(Cf. People v. Lucero (1988) 44 Cal.3d 1006, 1026 [ 245 Cal.Rptr. 185 , 750 P.2d 1342 ] [it was Skipper error to prevent mental health professional from giving opinion on whether the defendant was a recidivist] [hereafter Lucero]; see also People v. McLain (1988) 46 Cal.3d 97, 108 [ 249 Cal.Rptr. 630 , 757 P.2d 569 ] [prison psychologist; foundational issues waived by the parties].) The People argue that several factors undermined Wilson’s qualifications as an expert.

1994(Cf. People v. Lucero (1988) 44 Cal.3d 1006, 1026 [ 245 Cal.Rptr. 185 , 750 P.2d 1342 ] [it was Skipper error to prevent mental health professional from giving opinion on whether the defendant was a recidivist] [hereafter Lucero]; see also People v. McLain (1988) 46 Cal.3d 97, 108 [ 249 Cal.Rptr. 630 , 757 P.2d 569 ] [prison psychologist; foundational issues waived by the parties].) The People argue that several factors undermined Wilson’s qualifications as an expert.

1990J.), italics added; see Eddings v. Oklahoma, supra, 455 U.S. at p. 110 [ 71 L.Ed.2d at p. 8 ]; Skipper v. South Carolina, supra, 476 U.S. at p. 4 [90 L.Ed.2d at pp. 6-7].) It follows that to bar a defendant from introducing relevant mitigating evidence is error of federal constitutional dimension, which is commonly referred to as “Skipper error.” (See generally Skipper v. South Carolina, supra, 476 U.S. at pp. 4-8 [90 L.Ed.2d at pp. 6-9]; Hitchcock v. Dugger (1987) 481 U.S. 393, 394, 398-399 [ 95 L.Ed.2d 347, 350-353 , 107 S.Ct. 1821 ]; Mills v. Maryland (1988) 486 U.S. 367, 374-375 [ 100 L.Ed

1990J.), italics added; see Eddings v. Oklahoma, supra, 455 U.S. at p. 110 [ 71 L.Ed.2d at p. 8 ]; Skipper v. South Carolina, supra, 476 U.S. at p. 4 [90 L.Ed.2d at pp. 6-7].) It follows that to bar a defendant from introducing relevant mitigating evidence is error of federal constitutional dimension, which is commonly referred to as “Skipper error.” (See generally Skipper v. South Carolina, supra, 476 U.S. at pp. 4-8 [90 L.Ed.2d at pp. 6-9]; Hitchcock v. Dugger (1987) 481 U.S. 393, 394, 398-399 [ 95 L.Ed.2d 347, 350-353 , 107 S.Ct. 1821 ]; Mills v. Maryland (1988) 486 U.S. 367, 374-375 [ 100 L.Ed

1990J.), italics added; see Eddings v. Oklahoma, supra, 455 U.S. at p. 110 [ 71 L.Ed.2d at p. 8 ]; Skipper v. South Carolina, supra, 476 U.S. at p. 4 [90 L.Ed.2d at pp. 6-7].) It follows that to bar a defendant from introducing relevant mitigating evidence is error of federal constitutional dimension, which is commonly referred to as “Skipper error.” (See generally Skipper v. South Carolina, supra, 476 U.S. at pp. 4-8 [90 L.Ed.2d at pp. 6-9]; Hitchcock v. Dugger (1987) 481 U.S. 393, 394, 398-399 [ 95 L.Ed.2d 347, 350-353 , 107 S.Ct. 1821 ]; Mills v. Maryland (1988) 486 U.S. 367, 374-375 [ 100 L.Ed

1990J.), italics added; see Eddings v. Oklahoma, supra, 455 U.S. at p. 110 [ 71 L.Ed.2d at p. 8 ]; Skipper v. South Carolina, supra, 476 U.S. at p. 4 [90 L.Ed.2d at pp. 6-7].) It follows that to bar a defendant from introducing relevant mitigating evidence is error of federal constitutional dimension, which is commonly referred to as “Skipper error.” (See generally Skipper v. South Carolina, supra, 476 U.S. at pp. 4-8 [90 L.Ed.2d at pp. 6-9]; Hitchcock v. Dugger (1987) 481 U.S. 393, 394, 398-399 [ 95 L.Ed.2d 347, 350-353 , 107 S.Ct. 1821 ]; Mills v. Maryland (1988) 486 U.S. 367, 374-375 [ 100 L.Ed

1990The court erred in sustaining the prosecutor's objections without hearing defendant's answers. [17] The prejudicial effect of "Skipper error" is governed by the beyond-a-reasonable-doubt test of Chapman v. California (1967) 386 U.S. 18, 24 [17 *648 L.Ed.2d 705, 710-711, 87 S.Ct. 824 , 24 A.L.R.3d 1065 ] ( Chapman ). ( People v. Lucero (1988) 44 Cal.3d 1006, 1031-1032 [ 245 Cal. Rptr. 185 , 750 P.2d 1342 ]; see Hitchcock v. Dugger (1987) 481 U.S. 393, 399 [ 95 L.Ed.2d 347, 353 , 107 S.Ct. 1821 ]; Rose v. Clark (1986) 478 U.S. 570, 576-579 [ 92 L.Ed.2d 460, 469-471 , 106 S.Ct. 3101 ].) On this r

1990The court erred in sustaining the prosecutor's objections without hearing defendant's answers. [17] The prejudicial effect of "Skipper error" is governed by the beyond-a-reasonable-doubt test of Chapman v. California (1967) 386 U.S. 18, 24 [17 *648 L.Ed.2d 705, 710-711, 87 S.Ct. 824 , 24 A.L.R.3d 1065 ] ( Chapman ). ( People v. Lucero (1988) 44 Cal.3d 1006, 1031-1032 [ 245 Cal. Rptr. 185 , 750 P.2d 1342 ]; see Hitchcock v. Dugger (1987) 481 U.S. 393, 399 [ 95 L.Ed.2d 347, 353 , 107 S.Ct. 1821 ]; Rose v. Clark (1986) 478 U.S. 570, 576-579 [ 92 L.Ed.2d 460, 469-471 , 106 S.Ct. 3101 ].) On this r

1990(See People v. Clark (1990) 50 Cal.3d 583, 617-618 [ 268 Cal. Rptr. 399 , 789 P.2d 127 ]; People v. Bloom (1989) 48 Cal.3d 1194, 1218-1228 , especially 1222 [ 259 Cal. Rptr. 669 , 774 P.2d 698 ]; People v. Guzman (1988) 45 Cal.3d 915, 961-963 [ 248 Cal. Rptr. 467 , 755 P.2d 917 ].) Consistency would seem to have required the majority to vindicate, at least as wholeheartedly, the right of such defendants to ask for life.

1990(See People v. Clark (1990) 50 Cal.3d 583, 617-618 [ 268 Cal. Rptr. 399 , 789 P.2d 127 ]; People v. Bloom (1989) 48 Cal.3d 1194, 1218-1228 , especially 1222 [ 259 Cal. Rptr. 669 , 774 P.2d 698 ]; People v. Guzman (1988) 45 Cal.3d 915, 961-963 [ 248 Cal. Rptr. 467 , 755 P.2d 917 ].) Consistency would seem to have required the majority to vindicate, at least as wholeheartedly, the right of such defendants to ask for life.

1990(See People v. Clark (1990) 50 Cal.3d 583, 617-618 [ 268 Cal. Rptr. 399 , 789 P.2d 127 ]; People v. Bloom (1989) 48 Cal.3d 1194, 1218-1228 , especially 1222 [ 259 Cal. Rptr. 669 , 774 P.2d 698 ]; People v. Guzman (1988) 45 Cal.3d 915, 961-963 [ 248 Cal. Rptr. 467 , 755 P.2d 917 ].) Consistency would seem to have required the majority to vindicate, at least as wholeheartedly, the right of such defendants to ask for life.

1990(See People v. Clark (1990) 50 Cal.3d 583, 617-618 [ 268 Cal. Rptr. 399 , 789 P.2d 127 ]; People v. Bloom (1989) 48 Cal.3d 1194, 1218-1228 , especially 1222 [ 259 Cal. Rptr. 669 , 774 P.2d 698 ]; People v. Guzman (1988) 45 Cal.3d 915, 961-963 [ 248 Cal. Rptr. 467 , 755 P.2d 917 ].) Consistency would seem to have required the majority to vindicate, at least as wholeheartedly, the right of such defendants to ask for life.

1989Included within its bounds is “evidence that the defendant would not pose a danger if spared (but incarcerated) . . . .” (Skipper v. South Carolina, supra, 476 U.S. at p. 5 [ 90 L.Ed.2d at p. 7 ].) From the foregoing it follows that when the sentencer refuses to consider relevant mitigating evidence there occurs error of federal constitutional dimension—which is commonly referred to as “Skipper error.” (See Skipper v. South Carolina, supra, 476 U.S. at p. 4 [90 L.Ed.2d at pp. 6-7]; Hitchcock v. Dugger, supra, 481 U.S. at pp.394-399 [95 L.Ed.2d at pp. 350-353].) Indeed, even when the record doe

1989Included within its bounds is “evidence that the defendant would not pose a danger if spared (but incarcerated) . . . .” (Skipper v. South Carolina, supra, 476 U.S. at p. 5 [ 90 L.Ed.2d at p. 7 ].) From the foregoing it follows that when the sentencer refuses to consider relevant mitigating evidence there occurs error of federal constitutional dimension—which is commonly referred to as “Skipper error.” (See Skipper v. South Carolina, supra, 476 U.S. at p. 4 [90 L.Ed.2d at pp. 6-7]; Hitchcock v. Dugger, supra, 481 U.S. at pp.394-399 [95 L.Ed.2d at pp. 350-353].) Indeed, even when the record doe

1989(See, e.g., Satterwhite v. Texas (1988) 486 U.S. 249, 258 [ 100 L.Ed.2d 284, 295 , 108 S.Ct. 1792, 1798 ] [stating that “the evaluation of the consequences of an error in the sentencing phase of a capital case may be more difficult because of the discretion that is given to the sentencer”].) As stated above, I believe that Skipper error in fact occurred or must be presumed to have occurred.

1989(See, e.g., Satterwhite v. Texas (1988) 486 U.S. 249, 258 [ 100 L.Ed.2d 284, 295 , 108 S.Ct. 1792, 1798 ] [stating that “the evaluation of the consequences of an error in the sentencing phase of a capital case may be more difficult because of the discretion that is given to the sentencer”].) As stated above, I believe that Skipper error in fact occurred or must be presumed to have occurred.