People v. Sheldon (1994) 7 Cal.4th 1136 , 31 Cal.Rptr.2d 368; 875 P.2d 83
THE PEOPLE, Plaintiff and Respondent, v. JEFFREY T. SHELDON, Defendant and Appellant.
(Superior Court of Riverside County, No. CR-22919, J. William Mortland, Judge.)
(Opinion by Lucas, C. J., with Kennard, Arabian, Baxter and George, JJ., and Kline, J., fn. * concurring. Separate dissenting opinion by Mosk, J.)
COUNSEL
Jack Leavitt, under appointment by the Supreme Court, for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pat Zaharopoulos, Janelle B. Davis and Robert B. Shaw, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
LUCAS, C. J.
On December 19, 1985, defendant Jeffrey T. Sheldon was convicted of first degree murder with special circumstances and sentenced to death. On May 15, 1989, we affirmed defendant's guilt conviction in most respects (reversing only his conviction for assault with a deadly weapon), but vacated the judgment of death and remanded to the trial court for redetermination of defendant's application for modification of the death verdict. (People v. Sheldon (1989) 48 Cal.3d 935, 963 [258 Cal.Rptr. 242, 771 P.2d 1330] [Sheldon I].) We observed that the trial court had improperly failed to set forth its reasons for denying modification. (Id. at p. 962.) Our judgment read as follows:
"The judgment convicting defendant of assault with a deadly weapon is reversed. The judgment of conviction is affirmed in all other respects but the judgment of death is vacated and the cause remanded to the trial court for the limited purpose of redetermining defendant's application for modification of the verdict in accordance with this opinion. If the trial court, upon application of the appropriate standards, denies the application for modification, it shall reinstate the judgment of death. If it grants the application, it shall enter a judgment of life without possibility of parole. Any subsequent appeal shall [7 Cal.4th 1139] be limited to issues related to the modification application. (See People v. Rodriguez [1986] 42 Cal.3d 730, 794-795 [230 Cal.Rptr. 667, 726 P.2d 113].)" (Sheldon I, supra, 48 Cal.3d at p. 963.)
On May 7, 1990, the trial court held a new hearing on the modification issue and again denied the application to modify. Except for the reversed assault count, the court reaffirmed its previous sentence and remanded defendant to the sheriff for delivery to San Quentin state prison.
It took more than three and one-half years from the date of judgment on remand to secure appellate counsel and obtain the opening brief on the limited issue of modification of sentence. Appellate counsel filed his opening brief with us on January 25, 1994. The Attorney General responded on February 23. Counsel replied to the response on March 15.
According to counsel, defendant, who has been on death row for eight years, believes that a sentence of life imprisonment without possibility of parole would constitute cruel and unusual punishment as applied to him, and defendant requests that we "affirm the judgment imposing the death penalty against him." Appellate counsel recites that defendant wants no more "appeals, writs or motions" filed on his behalf, and instead desires that an immediate execution date be set. Counsel nonetheless has prepared a 33-page brief attacking various procedures leading to the latest death sentence for his client, so that we can "make whatever corrections are necessary to benefit those prisoners who prefer life without the possibility of parole to death. But, this Court should leave defendant's sentence intact. As applied to him, endless imprisonment would amount to perpetual torture, unconstitutionally imposed in defiance of the Eight and Fourteenth Amendments to the federal Constitution."
Appellate counsel also, however, observes that defendant has allowed him to "make a record which could, in case defendant modifies his position, provide some hope of avoiding execution."
[1] In any event, this appeal is automatic (Pen. Code, § 1239, subd. (b)), and we have no authority to allow defendant to waive the appeal (People v. Stanworth (1969) 71 Cal.2d 820, 833-834 [80 Cal.Rptr. 49, 457 P.2d 889]; see People v. Deere (1985) 41 Cal.3d 353, 362-364 [222 Cal.Rptr. 13, 710 P.2d 925]). In light of counsel's foregoing remarks, we have carefully and independently reviewed the record to assure ourselves that no errors, procedural or substantive, were committed during the remanded proceeding that might have prejudiced defendant. As will appear, we found no such errors. Counsel's arguments regarding defects in this court's remand order likewise [7 Cal.4th 1140] are without merit and offer no valid reason to set aside the judgment of death rendered by the trial court on remand. Accordingly, we will affirm the judgment.
Facts
The facts surrounding defendant's offenses are set forth in our former opinion, and we merely summarize them here. In brief, defendant, during a three-day period in September 1983, (1) threatened and robbed the employees of a restaurant, kidnapping one of them, and (2) kidnapped, robbed, beat, and strangled to death a sixty-year-old man, Norris Neblett (Sheldon I, supra, 48 Cal.3d at p. 943.) Aggravating evidence included a 1983 Nevada offense in which defendant had assaulted, robbed, and threatened to kill an elderly couple, the Mahans. (Id. at p. 948.) Mitigating evidence included background and character evidence by defendant's relatives, and testimony by a clinical psychologist, Dr. Rath, regarding defendant's childhood disorders, moodiness, chronic sadness, aggression, anxiety, and low tolerance of frustration. (Ibid.)
[2] At the hearing on remand, the trial court permitted defendant to introduce additional mitigating evidence, without objection by the People. This procedure constituted error (see People v. Brown (1993) 6 Cal.4th 322, 337 [24 Cal.Rptr.2d 710, 862 P.2d 710] [in ruling on modification motion, court considers only evidence submitted to jury]; People v. Cooper (1991) 53 Cal.3d 771, 848-849 [281 Cal.Rptr. 90, 809 P.2d 86] [same]), but it was clearly invited by defendant and, indeed, the error could only have benefitted him. The new evidence was limited to mitigating matters and included records and letters from San Quentin prison showing defendant's good conduct, his artwork while in prison, and his correspondence with his daughters. Additionally, defendant presented 12 witnesses who urged that his life be spared. These witnesses outlined defendant's frustrating childhood and tense marriage, his current remorse and evident rehabilitation, and his acceptance of responsibility as a parent.
Defendant personally testified at the modification hearing, acknowledging responsibility for his crimes, expressing remorse, and describing his relationship with his daughters, his artwork in prison, and his general rehabilitation. Defendant testified that he has stayed out of trouble while in prison and that the judge "wouldn't be sorry" if he modified defendant's sentence to life imprisonment without parole.
The prosecution offered no additional aggravating evidence. As indicated previously, the trial court denied the motion for modification of sentence [7 Cal.4th 1141] after reviewing on the record the aggravating and mitigating circumstances in the case. The court recited that although defendant had submitted substantial mitigating evidence, both at his trial and at the present modification hearing, the aggravating circumstances in the case, including the brutality and cold-blooded nature of the murder of the 60-year-old victim, the special circumstances in the course of robbery, burglary and kidnapping, and defendant's other crimes (including robbery, kidnapping and assault involving other elderly victims) outweighed the mitigating circumstances. The court concluded by stating that, "The Court feels, considering the details and specifics of these crimes, that they are cold, calculated crimes showing vicious conduct, and that those considerations outweigh the mitigating considerations considering everything that is involved."
Discussion
On appeal, appellate counsel does not challenge the sufficiency of the trial court's statement of reasons underlying its denial of the modification motion. Our review of the record indicates any such challenge would be rejected, for the trial court's order denying modification carefully sets forth the evidence and states the court's reasons for concluding that the aggravating circumstances outweighed the mitigating ones in the case. (See, e.g., People v. Kaurish (1990) 52 Cal.3d 648, 716-717 [276 Cal.Rptr. 788, 802 P.2d 278].)
[3] Instead of attacking the trial court's order, appellate counsel faults this court for limiting the remand to a redetermination of defendants application for modification of the verdict in "accordance with this opinion." (Sheldon I, supra, 48 Cal.3d at p. 963.) Counsel argues that the reference to our opinion necessarily inhibited the trial court from exercising "an independent determination whether imposition of the death penalty upon the defendant is proper in light of the relevant evidence and the applicable law." (People v. Rodriguez (1986) 42 Cal.3d 730, 793 [230 Cal.Rptr. 667, 726 P.2d 113].) In other words, according to counsel, because the trial court, on remand, was bound by our legal conclusions as to admissibility and prejudice in Sheldon I, no truly independent reevaluation of the jury's verdict was possible.
In counsel's view, our remand order was improper in two ways: First, it assertedly prevented defendant's counsel from offering at the remand hearing any further evidence or argument on "significant issues" resolved against defendant by our opinion. Second, our order necessarily required the trial court to accept our legal conclusions on the harmlessness of certain trial errors, errors which the trial court might otherwise have found improperly affected the jury's verdict. [7 Cal.4th 1142]
According to counsel, as a supposed result of the improper "limitation" in our remand order, the trial court was forced to decide the modification issue without considering the effect on the jury of the following asserted rulings or omissions (found by us to be either error-free or, at worst, harmless error): (1) failing to provide the jury with written copies of the instructions (see Sheldon I, supra, 48 Cal.3d at pp. 943-945); (2) shackling defendant with leg irons visible to some jurors (id. at pp. 945-946); (3) instructing the jury not to consider why other persons, testifying against defendant, were not being prosecuted (id. at pp. 946-948); (4) telling the penalty phase jury to "add up all the factors" in deciding penalty (id. at pp. 954-956); (5) failing to advise the penalty jury not to double count the circumstances of the charged offense in deciding penalty (id. at p. 956); (6) ordering the jury to continue deliberations after being deadlocked 11 to 1 (id. at pp. 958-960); and (7) admitting improper "other crimes" evidence against defendant (id. at pp. 948, 952-953, 961-962).
Appellate counsel's arguments lack merit. First, counsel places too much emphasis on the literal language of our remand order. The language at issue (directing the court to redetermine the motion "in accordance with [our] opinion") was intended merely to refer the trial judge to our opinion for explanation regarding the reasons for the remand. The language carried no other special implications and is common to other cases in which we have remanded for redetermination of the modification issue. (See, e.g., People v. Lewis (1990) 50 Cal.3d 262, 292 [266 Cal.Rptr. 834, 786 P.2d 892]; People v. Rodriguez, supra, 42 Cal.3d at p. 794.)
Second, defendant never previously objected to the terms of our remand order. The point was neither raised on petition for rehearing (see rule 27, Cal. Rules of Court) nor asserted at any time during the remand hearing. Appellate counsel cites no instances in which particular items of mitigating evidence or argument were excluded on this ground at the modification hearing.
Third, assuming our remand order may be construed as requiring the trial court to resolve questions of admissibility and prejudice in accordance with the conclusions in our opinion, we see no reason why such an order should be deemed improper. It is quite appropriate that the trial court, in resolving the modification issue, should be guided by the correct legal principles governing the case, as set forth in our opinion. To the extent that such guidance may interfere with the trial court's independence, such "interference" seems entirely justified. As the People observe, the trial court's obligation was not to substitute its view as to penalty in place of the jury's verdict, but to reweigh the evidence and make an independent determination [7 Cal.4th 1143] whether the weight of the evidence supported that verdict. (People v. Espinoza (1992) 3 Cal.4th 806, 830 [12 Cal.Rptr.2d 682, 838 P.2d 204], and cases cited.) Such a determination could only be aided by our rulings in Sheldon I.
[4] Counsel also raises certain asserted flaws in California's capital sentencing procedures, including the failure to define for the penalty phase jury what evidence is "mitigating" and what evidence is "aggravating." (He observes, however, that "the jury's choice of death ... [in the present case] was a proper response to the evidence and arguments supporting mitigation or aggravation.") Any such substantive contentions are clearly beyond the limited scope of the present appeal. As our remand order states, "Any subsequent appeal shall be limited to issues related to the modification application. (See People v. Rodriguez, supra, 42 Cal.3d 730, 794-795.)" (Sheldon I, supra, 48 Cal.3d at p. 963; see also People v. Brown, supra, 6 Cal.4th at p. 339, fn. 16.)
The judgment of death is affirmed.
Kennard, J., Arabian, J., Baxter, J., George, J. and Kline, J., fn. * concurred.
MOSK, J.
I dissent.
In People v. Sheldon (1989) 48 Cal.3d 935 [258 Cal.Rptr. 242, 771 P.2d 1330] (hereafter Sheldon I), this court vacated the original judgment imposing a sentence of death for redetermination of the automatic verdict-modification application which the trial court had erroneously denied. I would have reversed the judgment in that regard for various instances of prejudicial misconduct by the prosecutor and prejudicial error by the trial court. (Id. at pp. 963-969 (conc. & dis. opn. of Mosk, J.).) On remand, after again denying the automatic verdict-modification application, the trial court reinstated the judgment. The majority now conclude that affirmance is in order. I cannot agree. I adhere to the views I expressed in Sheldon I: reversal of the judgment is required insofar as it imposes the sentence of death.
FN *. Presiding Justice, Court of Appeal, First Appellate District, Division Two, assigned by the Acting Chairperson of the Judicial Council.
FN *. Presiding Justice, Court of Appeal, First Appellate District, Division Two, assigned by the Acting Chairperson of the Judicial Council.
Automatic appeal from a judgment of death.
| Date: | Citation: | Docket Number: | Category: | Status: | Cross Referenced Cases: |
| Thu, 06/30/1994 | 7 Cal.4th 1136 | S015712 | Automatic Appeal | closed; remittitur issued | PEOPLE v. SHELDON (JEFFREY THEODORE) (S004704) |
| 1 | The People (Respondent) |
| 2 | Sheldon, Jeffrey Theodore (Appellant) Represented by Christopher F. Wilson Christopher Wilson & Associates 21535 Hawthorne Blvd., Suite 260 Torrance, CA |
| 3 | Sheldon, Jeffrey Theodore (Appellant) Represented by Marcia A. Morrissey Attorney at Law 4929 Wilshire Blvd., Suite 940 Los Angeles, CA |
| Disposition | |
| Jun 30 1994 | Opinion: Affirmed |
| Dockets | |
| May 11 1990 | Judgment of death |
| May 23 1990 | Filed certified copy of Judgment of Death Rendered 5-11-90. |
| Jul 26 1993 | Counsel appointment order filed Jack Leavitt, Esq., Is appointed to represent Applt on His A.A., Including Any Related Habeas Proceedings. |
| Dec 21 1993 | Record on appeal filed C-1 (110 Pp.) and R-6 (121 Pp.) |
| Dec 21 1993 | Appellant's opening brief letter sent, due: 1-31-94. |
| Jan 25 1994 | Appellant's opening brief filed (33 Pp.) |
| Jan 26 1994 | Filed: Supplemental Proof of Service of AOB (on Applt). |
| Jan 26 1994 | Compensation awarded counsel |
| Feb 8 1994 | Compensation awarded counsel |
| Feb 23 1994 | Respondent's brief filed (12 Pp.) |
| Mar 15 1994 | Appellant's reply brief filed (3 Pp.) |
| Mar 17 1994 | Letter sent to: Counsel Advising case Could be Scheduled for Oral Argument as early as May 1994 Session. |
| Mar 31 1994 | Case Ordered on Calendar: Tuesday, May 3, 1994, 9 A.M. - S.F. |
| Apr 22 1994 | Filed: Applt's Pro Se motion (Confidential). |
| May 3 1994 | Cause Called and Argued (not yet submitted) |
| May 3 1994 | Submitted by order |
| May 5 1994 | Filed: Applt's request for Discovery of Documents from Cap & for Ext. of time to Pursue Habeas Corpus Investigation. |
| May 11 1994 | Filed: Suppl Decl of Jack Leavitt to support request for Discovery. |
| Jun 30 1994 | Opinion filed: Judgment affirmed in full Majority Opinion by Lucas, C.J. -- joined by Kennard, Arabian, Baxter, George & J. Anthony Kline (P.J. CA 1/2, assigned) JJ. Dissenting Opinion by Mosk, J. |
| Jul 21 1994 | Order filed: Upon request of Applt, appointed Counsel Jack Leavitt Is Hereby Relieved from representation of Applt with Respect to the Investigation or Initiation of Habeas Corpus Proceedings Related to Applt's two Automatic Appeals Herein (People V. Sheldon) (1989) 48 Cal.3d 935 [Sheldon I]; People V. Sheldon (1994) 7 Cal.4th 1136 [Sheldon Ii]), and Christopher F. Wilson Is Hereby appointed as Habeas Corpus Counsel in His Place. Jack Leavitt Shall Remain as Counsel for Applt with Respect to the Preparation & filing of A Petn for Certiorari to be filed with the U.S. Supreme Court Pertaining To this Court's Disposition of the Automatic Appeal in Sheldon Ii, If He Deems Such A Petn To be Appropriate. Mr. Leavitt Is directed To Deliver to Mr. Wilson within 10 Days from the filing of this Order the Entire file Relating to the Automatic Appeal in Sheldon I Currently in His Possession, Including, But not Limited To, the Reporter's and Clerk's Transcripts, and copies of all other Documents filed in this Court. Mr. Leavitt Shall Deliver to Mr. Wilson the file Pertaining to Sheldon Ii in Due Course, But no Later Than the Date of finality of the Judgment in That Appeal Following Any Certiorari Proceedings. Applt's "request for Discovery of Documents and Extension of Time" Is denied. |
| Jul 21 1994 | Compensation awarded counsel |
| Aug 2 1994 | Remittitur issued (AA) |
| Aug 8 1994 | Received: Receipt for Remittitur. |
| Aug 11 1994 | Order filed (150 day statement) |
| Sep 28 1994 | Compensation awarded counsel |
| Oct 6 1994 | Received: Notice from U.S.S.C. of filing Petn for Cert. on 9-28-94, No. 94-6239. |
| Nov 21 1994 | Motion filed By Applt (received By Fax). |
| Nov 22 1994 | Order filed: Re: Applt's motion filed 11-21-94 (Confidential) |
| Nov 28 1994 | Certiorari denied by U.S. Supreme Court |
| Dec 2 1994 | Filed: Applt's Confidential Request. |
| Dec 2 1994 | Motion filed By Applt (Confidential) |
| Dec 2 1994 | Filed: Applt's Confidential Request. |
| Dec 2 1994 | Motion filed By Applt, Ex Parte (Confidential) |
| Dec 2 1994 | Filed: Applt's Confidential Request. |
| Dec 2 1994 | Motion filed By Applt, Ex Parte (Confidential) |
| Dec 5 1994 | Filed: Applt's Confidential Request. |
| Dec 5 1994 | Motion filed By Applt, Ex Parte (Confidential) |
| Dec 14 1994 | Order filed: Re: Confidential motion filed 12-2-94 (Confidential) |
| Dec 14 1994 | Order filed: Re: Confidential motion filed 12-2-94 (Confidential) |
| Dec 14 1994 | Order filed: Re: Confidential Motions filed 12-2-94 and 12-5-94 (Confidential) |
| Dec 14 1994 | Order filed: Re: Confidential motion filed 12-7-94 (Confidential) |
| Feb 1 1995 | Compensation awarded counsel |
| Mar 27 1995 | Filed: Notice of change of Firm name (Applt's Counsel) |
| May 10 1995 | Compensation awarded counsel |
| May 18 1995 | Compensation awarded counsel |
| Jun 14 1995 | Compensation awarded counsel |
| Jun 22 1995 | Compensation awarded counsel |
| Jan 24 1996 | Compensation awarded counsel |
| Mar 7 1996 | Compensation awarded counsel |
| Mar 13 1996 | Compensation awarded counsel |
| Mar 28 1996 | Compensation awarded counsel |
| May 1 1996 | Compensation awarded counsel |
| May 23 1996 | Compensation awarded counsel |
| Aug 5 1996 | Compensation awarded counsel |
| Oct 29 1997 | Motion filed For appointment of Marcia Morrissey as Associate Counsel. |
| Nov 12 1997 | Motion filed To appoint Marcia Morrissey as Assoc. Counsel. |
| Nov 24 1997 | Filed: Exhibits A-C to Decl of Christopher Wilson in support of motion for appointment of Morrissey as Assoc. Counsel. |
| Dec 17 1997 | Order filed: Granting Applt's motion for appointment of Second Counsel. Marcia A. Morrissey Is appointed as Assoc. Counsel for Purposes of all Appropriate Post-Conviction Proceedings, Including the Preparation & filing of A Petn for Clemency with the Governor of Calif., as Appropriate. |
| Jul 8 1998 | Compensation awarded counsel |
| Aug 5 1998 | Change of Address filed for: Atty Christopher F. Wilson. |
| Sep 16 1998 | Compensation awarded counsel |
| Briefs | |
| Jan 25 1994 | Appellant's opening brief filed (33 Pp.) |
| Feb 23 1994 | Respondent's brief filed (12 Pp.) |
| Mar 15 1994 | Appellant's reply brief filed (3 Pp.) |