People v. Osband (1996) · DecisionDepot

People v. Osband

Name: California Superior Court Tentative Rulings
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California Supreme Court Jul 29, 1996 No. No. S005233Published

Before: Kennard, Mosk

Opinion

THE COURT.* Defendant Lance Ian Osband has been sentenced to death under the 1978 death penalty statute for murder.

In an information, defendant was charged with the murder on October 5, 1985, of Lois Minnie Skuse. (Pen. Code, § 187; all unlabeled statutory references are to this code.) It was also alleged that he used a knife in the killing. (Former § 12022, subd. (b).) Three special circumstances were alleged: that the murder was in the first degree and he committed it during a burglary (former § 190.2, subd. (a)(17)(vii)), during a robbery (former § 190.2, subd. (a)(17)(i)), and after raping Skuse (former § 190.2, subd. (a)(17)(iii)).

Defendant was also charged with the burglary of the Skuse residence (§ 459), and with the robbery (§ 211) and forcible rape (§ 261, subd. (a)(2)) of Skuse. It was alleged that he used a knife to commit the robbery (former § 12022, subd. (b)) and rape (§ 12022.3, subd. (a)).

[653]Defendant was also charged with attempting to murder Norma C. 16 days after he killed Skuse. (§§ 187, subd. (a), 664.) He was further charged with the burglary of the classroom in which she was attacked (§ 459), with robbing her (§ 211), and with assaulting her with the intent to rape (§ 220). Each of these four charges also carried allegations of infliction of great bodily injury (§ 12022.7) and knife use (former § 12022, subd. (b)).

A jury found defendant guilty on all counts and all the allegations true, except for the knife-use allegations in the charges stemming from the attack on Norma C., following the trial court’s decision to strike those allegations. It found that the murder of Skuse and the burglary of her apartment were offenses committed in the first degree. The burglary of Norma C.’s classroom was found to be in the second degree.

Facts

I. The Guilt Phase.

A. The Prosecution’s Case.

1. The Killing of Lois Minnie Skuse.

Just before noon on October 6, 1985, the son and daughter-in-law of 66-year-old Lois Minnie Skuse found her body on the floor of the bedroom of her Sacramento apartment. Her son first saw the body; he cried out “almost instantaneous[ly]” on entering the bedroom from a short hallway. As her daughter-in-law explained: “All of the drawers in her dresser had been dumped” on top of the body so that she and her husband could only “see her legs kind of halfway out from underneath the pile” formed by the drawers and clothing. She called to her husband not to touch anything because there might be fingerprints, and she summoned the police, who arrived while she was still on the phone. A coroner’s deputy saw “one leg and part of another” protruding from underneath the pile.

Related research

Defendant proposed an instruction that would have specified that only the circumstances of the crime, the presence or absence of prior violent criminal activity, and the presence or absence of a felony conviction could be considered in aggravation or mitigation. (§ 190.3, factors (a), (b), & (c).) [705]The proposed instruction would have instructed the jury that other factors— his age, his potential for rehabilitation, good behavior and a desire to learn in jail, whether the crime was aberrational, any lack of significant prior criminal conduct, any lingering doubt about his guilt or the truth of the special circumstance findings, whether the offense was committed under the influence of mental or emotional disturbance, whether a mental disease or defect or the effects of intoxication could account for the crime, and any other extenuating circumstance—must be considered, if applicable, only in mitigation. (See id., factors (h), (i), & (k); People v. Terry (1964) 61 Cal.2d 137, 145-147 [37 Cal.Rptr. 605, 390 P.2d 381]; cf. § 190.3, factor (d).) The court rejected his proposal. However, it did give a very favorable special instruction, proposed by defendant, that told the jury it could consider in mitigation the absence of a prior felony conviction; his age at the time of the offense; his potential for rehabilitation, his past and present good behavior, and his desire to learn while in jail; whether the offense was aberrational; any lack of a record of significant prior criminal conduct; any intoxication by drugs at the time of the crimes against Skuse and Norma C.; the likely effect of a death sentence on his family, loved ones, and friends; whether a mental disease or defect or the effects of substance abuse could have caused what may be termed a form of diminished capacity at the time of the offense; and any other extenuating circumstance. We believe that the special instruction told the jury to consider in mitigation any evidence bearing on the factors described.

Concurrence — Mosk

MOSK, J. I concur in the judgment.

The majority find harmless the error in omitting an explicit reference to the intent to kill from the felony-murder special-circumstance instructions because, in their view, overwhelming evidence leads to the conclusion that defendant did intend to kill. (Maj. opn„ ante, at pp. 679-684.) I have explained that this type of harmless-error analysis is improper because the question “is not what a reviewing court might itself decide if it looked to the entire record,” for “the reviewing court is not the proper decisionmaker.” (People v. Johnson (1993) 6 Cal.4th 1, 56 [23 Cal.Rptr.2d 593, 859 P.2d 673] (conc. and dis. opn. of Mosk, J.).) Neither is the question “what a reviewing court might conjecture the jury would have decided in the absence of the error.” (Id. at p. 57.) Rather, it is “what the jury actually decided and whether the error may have tainted its decision." (Id. at p. 56.)

[738]Nevertheless, I agree with the majority that the error was harmless. Under the instructions given, the jury necessarily found an intent to kill.

As the People concede, failing to instruct the jury that it had to find intent to kill as an element of each of the felony-murder special circumstances was error under Carlos v. Superior Court (1983) 35 Cal.3d 131 [197 Cal.Rptr. 79, 672 P.2d 862]. We have held that whether the error was harmless is determined under the harmless-beyond-a-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711, 87 S.Ct. 824]. (People v. Johnson, supra, 6 Cal.4th at p. 45.) The Chapman test is satisfied when the jury necessarily makes a finding adverse to the defendant on the issue erroneously omitted from the instructions. (See Carella v. California (1989) 491 U.S. 263, 270-271 [105 L.Ed.2d 218, 224-226, 109 S.Ct. 2419] (conc. opn. of Scalia, J.).)

Such is the case here. In finding each of the felony-murder special-circumstance allegations to be true, and also finding defendant guilty of burglary, robbery, and rape in the attack on Lois Minnie Skuse, the jury necessarily found as follows: defendant committed the murder, i.e., an unlawful killing with malice aforethought, while committing the indicated felony, and he did so for the purpose of committing the felony or avoiding the legal consequences thereof. The jury thereby necessarily found that, in committing the felony, he had the intent to kill. To kill for the purpose of achieving success or at least avoiding punishment with regard to a felony entails an intent to kill.

At pages 691-692, 702, 727, and 732 of the majority opinion, ante, the majority resolve claims raised on the basis of defendant’s contention that the jury did not find an intent to kill. I would reject each of those claims for the reasons I have set forth above.

I recognize that in People v. Whitt (1984) 36 Cal.3d 724 [205 Cal.Rptr. 810, 685 P.2d 1161], we concluded rather summarily that under the language of a felony-murder special-circumstance instruction similar to those given here, “[t]he jury was not instructed to find that [the defendant] intended to kill. . . .” (Id. at p. 734.) We reasoned that “[n]o instruction squarely posed the question of an intent to kill.” (Id. at p. 736, italics added.) Although that is true, the relevant point is that under the instructions given here the jury necessarily found such an intent.

I also recognize that, in finding each of the felony-murder special-circumstance allegations to be true, the jury necessarily found that the indicated felony “was [not] merely incidental to the commission of the murder.” But [739]there is no basis to conclude that such a finding displaces those described above. As noted by the majority, the instructions stated: “To find that the special circumstance[] referred to in these instructions as murder in the commission of [the underlying crime] is true, it must be proved: [*][] 1. That the murder was committed while the defendant was engaged in the commission or attempted commission of [the underlying crime]; and [*]0 2. That the murder was committed in order to carry out or advance the commission of the [underlying] crime . . . or to facilitate the escape therefrom or to avoid detection. In other words, the special circumstance referred to in these instructions is not established if the [underlying crime] was merely incidental to the commission of the murder.” (Italics added.) The italicized words define a necessary condition—a not-merely-incidental felony is required—but not a sufficient condition—a not-merely-incidental felony is enough.

Concurrence — Kennard

KENNARD, J., Concurring and Dissenting. I concur in the judgment affirming defendant’s death sentence for the first degree murder of Lois Minnie Skuse, and upholding his convictions for the attempted murder of Norma C., and for the other offenses committed during those two incidents. With one exception, I also agree with the reasoning of the majority. In particular, I agree that the trial court erred in failing to instruct the jury that it could find the felony-murder special-circumstance allegations to be true only if it determined that defendant intended to kill Skuse, and I agree that this error did not prejudice defendant. My disagreement is with the reasoning the majority uses to reach the conclusion that this error was nonprejudicial.

The majority reasons that the error was nonprejudicial because “ ‘the evidence of defendant’s intent to kill . . . was overwhelming’ ” (maj. opn., ante, at p. 681), and therefore the majority is satisfied beyond a reasonable doubt that defendant would not receive a more favorable verdict if the matter were to be retried in a proceeding in which the error did not occur. The difficulty with this reasoning is that the majority is substituting its own judgment of what a hypothetical jury would find in an error-free proceeding for the jury’s actual findings in this case, thereby denying defendant his federal constitutional right to a jury determination of the special circumstance charge.

In my view, the correct approach, as explained by recent decisions of the United States Supreme Court, is to closely examine the verdict, the instructions, and the evidence at defendant’s actual trial to determine whether the jury actually found either intent to kill or some other fact that is its “functional equivalent.” (See Sullivan v. Louisiana (1993) 508 U.S. 275, 280-281 [124 L.Ed.2d 182, 189-191, 113 S.Ct. 2078]; Carella v. California (1989) 491 U.S. 263, 271 [105 L.Ed.2d 218, 225-226, 109 S.Ct. 2419] (conc. [740]opn. of Scalia, J.).) As I explain here, the error in the instructions was harmless because, given the undisputed evidence establishing the manner of the killing in this case, the jury’s finding that defendant killed Skuse was functionally the equivalent of finding that he did so with intent to kill.

Admittedly, the difference between the two approaches is subtle. But it is a difference upon which the United States Supreme Court has insisted as essential to the preservation and enforcement of criminal defendants’ Sixth Amendment right to jury trial.

Penal Code section 190.21 provides that a defendant found guilty of first degree murder is subject to either a sentence of death or life imprisonment without possibility of parole if the trier of fact finds the existence of one or more special circumstances as defined in the statute. Among the special circumstances set forth are the “felony murder” special circumstances, which require a finding that the murder was perpetrated during the commission or attempted commission of certain enumerated felonies. (Id., subd. (a)(17).) In Carlos v. Superior Court (1983) 35 Cal.3d 131, 135 [197 Cal.Rptr. 79, 672 P.2d 862], this court construed section 190.2 as requiring “an intent to kill or to aid in a killing as an element of the felony murder special circumstance.” Four years later, in People v. Anderson (1987) 43 Cal.3d 1104, 1147 [240 Cal.Rptr. 585, 742 P.2d 1306], this court overruled Carlos, concluding: “[I]ntent to kill is not an element of the felony-murder special circumstance; but when the defendant is an aider and abetter rather than the actual killer, intent must be proved.” Anderson does not apply, however, to cases in which the murder was committed during the “window period” after Carlos but before Anderson (that is, between December 12, 1983, and October 13, 1987); in these cases, intent to kill is a necessary element of the felony-murder special circumstances. (In re Baert (1988) 205 Cal.App.3d 514, 521-522 [252 Cal.Rptr. 418]; accord, People v. Johnson (1993) 6 Cal.4th 1, 44-45 [23 Cal.Rptr.2d 593, 859 P.2d 673]; People v. Fierro (1991) 1 Cal.4th 173, 227 [3 Cal.Rptr.2d 426, 821 P.2d 1302].)

Here, the prosecution charged defendant with a murder that occurred on October 5, 1985, during the so-called window period, and alleged three felony-murder special circumstances, on the theory that the murder was perpetrated during the commission of the offenses of robbery, rape, and burglary. (Former § 190.2, subd. (a)(17)(i), (iii), and (vii).) When the trial court instructed the jury on the special circumstance allegations, it failed to instruct that as to each felony-murder special circumstance the prosecution [741]had to prove defendant’s intent to kill. This was error, and the majority so holds.

The majority further holds that the error was not prejudicial because “ ‘the evidence of defendant’s intent to kill. . . was overwhelming, and the jury could have had no reasonable doubt on the matter.’ ” (Maj. opn., ante, at p. 681.) I too am of the view that the error was not prejudicial, but for reasons different from those articulated by the majority.

This court has consistently held that when a trial court fails to instruct the jury on an element of a special circumstance allegation, the error violates the federal Constitution, and the prejudicial effect of that error must be measured by the test the high court set forth in Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711, 87 S.Ct. 824]. (People v. Garcia (1984) 36 Cal.3d 539, 550-552 [205 Cal.Rptr. 265, 684 P.2d 826]; People v. Odle (1988) 45 Cal.3d 386, 414-415 [247 Cal.Rptr. 137, 754 P.2d 184]; accord, People v. Johnson, supra, 6 Cal.4th 1, 45.) Under that test, an error implicating the federal Constitution may be found harmless only when, beyond a reasonable doubt, the error did not contribute to the verdict. (Chapman, supra, at p. 24 [17 L.Ed.2d at pp. 710-711].) Garcia and Odle relied on the due process clause of the Fourteenth Amendment to support their conclusion that a trial court’s failure to instruct on an element of the special circumstance allegation violates the federal Constitution. (Garcia, supra, at p. 552; Odle, supra, at p. 412.) In my view, the error also violates the federal Constitution’s Sixth Amendment, which “gives a criminal defendant the right to have a jury determine, beyond a reasonable doubt, his guilt of every element of the crime with which he is charged.” (United States v. Gaudin (1995) 515 U.S. _, _ [132 L.Ed.2d 444, 458, 115 S.Ct. 2310, 2320], italics added.)

Generally, the definition of crimes and their elements is a legislative prerogative. (McMillan v. Pennsylvania (1986) 477 U.S. 79 [91 L.Ed.2d 67, 106 S.Ct. 2411].) Under California’s death penalty law, which defines the crime of capital murder, the special circumstances are tried at the guilt phase of the trial together with a charge of first degree murder. (§§ 190.1, 190.4, subd. (a).) If, after finding the defendant guilty of first degree murder, the jury also finds the existence of at least one special circumstance, the defendant is eligible for the death penalty or for life imprisonment without possibility of parole. (Ibid.) The case then proceeds to the penalty phase, at which the jury decides whether to impose a sentence of death or of life imprisonment without possibility of parole based on the presence or absence of certain statutory factors in aggravation and mitigation. (§ 190.3.)

[742]If the legislative intent was that the special circumstances in California’s capital scheme be treated as the equivalent of or integral to criminal offenses, then the Sixth Amendment of the federal Constitution comes into play, giving defendants the right to have a jury decide the truth or falsity of such allegations. A trial court’s failure to instruct the jury on an element of a special circumstance allegation removes the issue from the jury’s consideration, thus violating the Sixth Amendment. If, on the other hand, the legislative intent was that the special circumstances be treated simply as sentencing factors, the Sixth Amendment would not apply, for “there is no Sixth Amendment right to jury sentencing, even where the sentence turns on specific findings of fact.” (McMillan v. Pennsylvania, supra, at p. 93 [91 L.Ed.2d atp. 81]; accord, People v. Bacigalupo (1991) 1 Cal.4th 103, 147 [2 Cal.Rptr.2d 335, 820 P.2d 559] [no Sixth Amendment right to jury trial at the penalty phase, and thus no right to a unanimous jury finding on aggravating and mitigating factors].)

Under the due process clause of the Fourteenth Amendment, the analysis is the same. “[I]n determining what facts must be proved beyond a reasonable doubt the state legislature’s definition of the elements of the offense is usually dispositive: ‘[T]he Due Process Clause requires the prosecution to prove beyond a reasonable doubt all of the elements included in the definition of the offense of which the defendant is charged.’ ” (McMillan v. Pennsylvania, supra, 477 U.S. at p. 85 [91 L.Ed.2d at p. 75], original italics.) As a general rule, however, the Fourteenth Amendment does not require that factors to be used only in determining a defendant’s sentence be proven beyond a reasonable doubt. (McMillan, supra, at pp. 86-92 [91 L.Ed.2d at pp. 76-80].)

Special circumstances, to some extent, defy classification. As this court observed in People v. Garcia, supra, 36 Cal.3d at page 552, “special circumstances are sui generis—neither a crime, an enhancement, nor a sentencing factor.” This court has, however, noted the “resemblance between a special circumstance proceeding and a trial to determine guilt.” (Ibid.) For example, the statutory procedures governing the pleading and proof of a special circumstance allegation are identical to those applicable to criminal offenses: The trier of fact must determine the truth or falsity of special circumstance allegations at the guilt phase of trial (§ 190.1, subd. (a)); that determination is based “on the evidence presented at the trial,” (§ 190.4, subd. (a)).2 In addition, at the preliminary hearing on a charge of capital murder, the prosecution must offer evidence supporting each special circumstance allegation (just as it must for the murder charge); if the prosecution [743]fails to do so, the defendant may move to dismiss the special circumstance allegation for insufficiency of evidence. (Ramos v. Superior Court (1982) 32 Cal.3d 26, 34 [184 Cal.Rptr. 622, 648 P.2d 589].) A special circumstance allegation likewise is an “offense” within the meaning of section 1387, which bars “any other prosecution for the same offense” when a felony action has twice been terminated. (Ramos, supra, at p. 36.) In short, as we explained in Garcia: “ ‘In the California scheme the special circumstance is not just an aggravating factor: it is a fact or set of facts, found beyond reasonable doubt by a unanimous verdict (Pen. Code, § 190.4), which changes the crime from one punishable by imprisonment of 25 years to life to one which must be punished either by death or life imprisonment without possibility of parole.’ ” (People v. Garcia, supra, 36 Cal.3d at p. 552, quoting People v. Superior Court (Engert) (1992) 31 Cal.3d 797, 803 [183 Cal.Rptr. 800, 647 P.2d 76].)

Because of the similarities between a special circumstance proceeding and a trial to determine guilt or innocence, this court has held that a trial court’s failure to instruct the jury on an element of a special circumstance is a denial of federal due process. (People v. Garcia, supra, 36 Cal.3d at p. 552; People v. Odle, supra, 45 Cal.3d at p. 412.) As explained above, the same method of analysis is used to determine the applicability of the Sixth Amendment right to jury trial; it therefore follows that if failure to instruct on an element of a special circumstance allegation violates the due process clause of the Fourteenth Amendment, it also violates the Sixth Amendment right to jury trial.

I now turn to the question of how to evaluate the prejudicial effect of the trial court’s failure to instruct the jury on intent to kill as an element of the felony-murder special circumstances.

Ill

In deciding that the trial court’s instructional error was harmless beyond a reasonable doubt, the majority relies on this court’s decision in People v. Johnson, supra, 6 Cal.4th 1, 46, which concluded that a trial court’s failure to instruct on intent to kill as an element of a special circumstance allegation is not prejudicial if “the evidence before the jury was so overwhelming as to leave it beyond a reasonable doubt the verdict would have been the same had the jury been instructed regarding the necessity of finding an intent to kill.” (Italics added.) Applying the Johnson test here, the majority holds that defendant was not prejudiced by the instructional error because “ ‘the evidence of defendant’s intent to kill . . . was overwhelming, and the jury [744]could have had no reasonable doubt on that matter.’ ” (Maj. opn., ante, at p. 681, quoting People v. Johnson, supra, at pp. 45-46.)

I concurred in People v. Johnson, supra, 6 Cal.4th 1, which was decided in 1993. Since then, however, I have reconsidered the issue and have concluded that to the extent the harmless error analysis used in Johnson relies on overwhelming evidence, that analysis does not conform to federal constitutional law as enunciated by the United States Supreme Court.

In 1994, the year after People v. Johnson, supra, 6 Cal.4th 1, was decided, this court was again called upon to apply federal harmless error standards to instructional error. In People v. Harris (1994) 9 Cal.4th 407 [37 Cal.Rptr.2d 200, 886 P.2d 1193], the jury instructions had incorrectly defined an element of robbery. As it had done in Johnson, the court in Harris determined the prejudicial effect of the instructional error by reasoning that instructional error in incorrectly defining an element was not prejudicial if the evidence of guilt was so overwhelming as to establish guilt as a matter of law. (Id. at p. 431.) I disagreed with the majority’s harmless error analysis in Harris. Setting forth my understanding of the pertinent decisions of the United States Supreme Court on the issue of harmless error when a jury instruction misdescribes an element of an offense, I observed:

“When a trial court, in instructions to the jury, incorrectly defines one of the elements of the crime with which the defendant is charged, the defendant’s conviction of that crime can be affirmed on appeal only if the reviewing court is persuaded beyond a reasonable doubt that the error did not ‘contribute to’ the verdict. (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711, 87 S.Ct. 824,24 A.L.R.3d 1065]; see also Pope v. Illinois (1987) 481 U.S. 497, 502 [95 L.Ed.2d 439, 446, 107 S.Ct. 1918]; People v. Hayes [1990] 52 Cal.3d 577, 628 [276 Cal.Rptr. 874, 802 P.2d 376].) To determine whether an error ‘contributed to’ a verdict, a reviewing court does not ask whether a hypothetical jury in a hypothetical trial in which the error did not occur would surely have reached the same verdict. (Sullivan v. Louisiana (1993) 508 U.S. [275, 277-280] [124 L.Ed.2d 182, 188-189, 113 S.Ct. 2078, 2081].) Rather, the reviewing court must ask whether the guilty verdict actually rendered in this trial was ‘surely unattributable to the error.’ (Ibid.) This is because the Sixth Amendment right to jury trial means that the jury, and not a reviewing court, must find beyond a reasonable doubt every fact needed to convict.

“Under the United State’s Supreme Court’s decisions in Yates v. Evatt [1991] 500 U.S. 391 [114 L.Ed.2d 432, 111 S.Ct. 1884], and Sullivan v. [745]Louisiana, supra, 508 U.S. [275] [124 L.Ed.2d 182, 113 S.Ct. 2078], the focus of the harmless error analysis is upon the verdict actually rendered in [a particular] case, not the verdict that would have been rendered in a hypothetical trial free of instructional error. Thus, if an instructional error prevents the jury from making a necessary factual finding, it is generally irrelevant that the evidence supporting that finding was overwhelming. In the words of Justice Scalia, ‘misdescription of an element of the offense . . . deprives the jury of its factfinding role’ and thus is ‘not curable by overwhelming record evidence of guilt.’ (Carella v. California (1989) 491 U.S. 263, 270 [105 L.Ed.2d 218, 225, 109 S.Ct. 2419] (conc. opn. of Scalia, J.).)” (People v. Harris, supra, 9 Cal.4th at pp. 455-457 (conc. and dis. opn. of Kennard, J.).)3

I then concluded in Harris that when a trial court, in instructions to the jury, incorrectly defines one of the elements of the crime with which the defendant is charged, the jury is deprived of its fact-finding role. I further concluded, however, that the instructional error in Harris was harmless beyond a reasonable doubt (Chapman v. California, supra, 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711]) because it had not “contributed to” the verdict. As I pointed out, the facts underlying the incorrectly defined element were conclusively established by the evidence at Harris’s trial; thus, the jury was not called upon to make a finding on that element. (People v. Harris, supra, 9 Cal.4th at pp. 458-459 (conc. and dis. opn. of Kennard, J.).)

The instructional error in Harris pertained to the incorrect definition of an element of robbery. Here, the trial court failed to instruct the jury that intent to kill was an element of the felony-murder special circumstances alleged. Thus, this case involves the complete failure to instruct on an element of the special circumstance allegations. In either situation, the instructional error’s effect upon a jury is the same: it prevents the jury from making a necessary factual finding. In Harris, the trial court’s misdescription of an element was, in my view, “ ‘not curable by overwhelming record evidence of guilt.’ ” (People v. Harris, supra, 9 Cal.4th at p. 457 (conc. and dis. opn. of Kennard, J.), quoting Carella v. California, supra, 491 U.S. 263, 270 [105 L.Ed.2d 218, 224-225] (conc. opn. of Scalia, J.).) So too here, the trial court’s error in failing to instruct the jury on an element of the felony-murder special-circumstance allegations cannot be cured by considering the weight of the evidence, as the majority does.

[746]Nonetheless, I conclude that the instructional error was harmless under Chapman v. California, supra, 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711]. In reaching this conclusion, I rely on the reasoning of Justice Scalia in his concurring opinion in Carella v. California, supra, 491 U.S. 263, 271 [105 L.Ed.2d 218, 224-225]. In that case, a jury instruction on an element of an offense contained a mandatory conclusive presumption. The instruction told the jurors that if they found the existence of certain facts (the predicate facts), they were required to conclusively presume another fact (the ultimate fact). Justice Scalia explained one situation in which this instructional error might be deemed not to have “contributed to” the verdict within the meaning of Chapman, and thus to be harmless.

Justice Scalia put it this way: “When the predicate facts relied upon in the instruction, or other facts necessarily found by the jury, are so closely related to the ultimate fact to be presumed that no rational jury could find those facts without also finding that ultimate fact, making those findings is functionally equivalent to finding the element required to be presumed. The error is harmless because it is ‘beyond a reasonable doubt’ Chapman v. California, 368 U.S. 18, 24 [17 L.Ed.2d 710-711] (1967) that the jury found the facts necessary to support the conviction.” (Carella v. California, supra, 491 U.S. 263, 271 [105 L.Ed.2d 218, 225-226] (conc. opn. of Scalia, J.); accord, Sullivan v. Louisiana, supra, 508 U.S. 275, 280-281 [124 L.Ed.2d 182, 189-191].)

As an illustration of this mode of harmless error analysis, Justice Scalia quoted the following passage from Rose v. Clark (1986) 478 U.S. 570, 580-581 [92 L.Ed.2d 460, 472, 106 S.Ct. 3101]: “In many cases, the predicate facts conclusively establish intent, so that no rational jury could find that the defendant committed the relevant criminal act but did not intend to cause injury.” (Original italics.)

Adapting this analysis to the situation in this case, the trial court’s error in failing to instruct on the need to find intent to kill may be deemed harmless if the jury, untainted by the error, necessarily found that defendant committed certain criminal acts and no rational jury could find that defendant committed those acts without intent to kill. In other words, the error may be deemed harmless if “[t]he method of execution itself precludes any inference the murder was accidental or unintentional.” (People v. Johnson, supra, 6 Cal.4th 1, 47.) This is such a case.

The question to be answered is whether in this case the jury necessarily found that defendant had the intent to kill Lois Minnie Skuse. At trial, undisputed evidence conclusively established that Skuse was a tiny, frail, [74766]-year-old woman with osteoporosis (“brittle bones”); that she died from a one-and-three-quarter-inch-deep V-shaped stab wound to her neck that partially severed her carotid artery; and that the fatal wound was inflicted after Skuse had suffered a broken rib and a broken jaw as the result of a severe beating. In convicting defendant of murdering Skuse, the jury necessarily found that he inflicted a deep, V-shaped stab wound in an obviously vital area of an elderly victim who, given her generally frail physical condition and the beating administered to her, could have offered no resistance at all. Because this method of killing is irreconcilable with any intent on the part of the perpetrator other than an intent to kill, the jury’s finding, untainted by instructional error, that defendant committed this criminal act was the “functional equivalent” of a finding that defendant had the intent to kill Lois Minnie Skuse when he inflicted the fatal injury. For this reason, I conclude that the instructional error did not contribute to the special circumstance finding and is therefore harmless beyond a reasonable doubt under Chapman v. California, supra, 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711].

There is an important distinction between the harmless error analysis I have engaged in, which is premised on the test articulated in Justice Scalia’s concurring opinion in Carella v. California, supra, 491 U.S. 263, 271 [105 L.Ed.2d 218, 225-226], and the overwhelming evidence test set forth by this court in People v. Johnson, supra, 6 Cal.4th 1, 46, relied on by the majority. I evaluate the evidence to decide what the jury in this case necessarily found, whereas the majority decides what a hypothetical jury considering the evidence presented at trial would have found. Although this distinction does not affect the outcome here, it may well do so in other cases.

Appellant’s petition for a rehearing was denied October 17, 1996, and the opinion was modified to read as printed above.

Further undesignated statutory references are to the Penal Code.

One special circumstance, the prior-murder special circumstance, is different. When the prosecution alleges a prior-murder special circumstance, the truth or falsity of this special [743]circumstance is determined at neither the guilt nor the penalty phase, but at a separate stage of trial. (§§ 190.1, subd. (b), 190.4, subd. (a).)

I have twice urged the high court to provide clarification of its harmless error analysis, in my concurring and dissenting opinion in People v. Harris, supra, 9 Cal.4th 407, 460-461, and more recently in my concurring and dissenting opinion in People v. Wims (1995) 10 Cal.4th 293, 328, footnote 10 [41 Cal.Rptr.2d 241, 895 P.2d 77], stressing that “the United States Supreme Court has not clearly described how a reviewing court should conduct a harmless error evaluation when the trial court has inaccurately defined, or failed to define, the elements of a criminal offense to the jury.” I again urge the high court to clarify this issue.

People v. Osband

Opinion

I. The Guilt Phase.

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C. The Prosecution’s Rebuttal Case.

II. The Penalty Phase.

I. Inadequate Record on Which to Bring Appeal.

II. Issues Regarding Pretrial Proceedings.

III. Jury Selection Issues.

IV. Guilt Phase Issues.

C. Denying Motion to Exclude Putrid Clothing.

I. Prosecutorial Misconduct.

V. Penalty Phase Issues.

C. Instructing on Factor (b) of Section 190.3.

I. Allowing Evidence of Prior Violent Criminal Activity.

L. Instruction on Weighing Aggravating and Mitigating Circumstances.

VI. Cumulative Effect on Penalty of Errors Throughout the Trial.

Concurrence — Mosk

Concurrence — Kennard

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