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People v. Frye7/30/1998
tive assistance of counsel. (See People v. Corona (1978) 80 Cal.App.3d 684.) Defendant also relates the details of a State Bar disciplinary action against Hawk that resulted in Hawk's suspension from the practice of law. (Hawk v. State Bar (1988) 45 Cal.3d 589.)
His argument implicitly acknowledges the holding in California v. Brown (1987) 479 U.S. 538, that an antisympathy instruction at the penalty phase does not constitute a violation of the Eighth Amendment per se. (Id. at pp. 541- 543; id. at p. 545 (conc. opn. of O'Connor, J.).)
Special instruction No. 10 states: "You are instructed that life without possibility of parole means exactly what it says: The defendant will be imprisoned for the rest of his life. [ ] You are instructed that the death penalty means exactly what it says: That the defendant will be executed. [ ] For you to conclude otherwise would be to rely on conjecture and speculation and would be a violation of your oath as trial jurors." Special instruction No. 21 states: "You are instructed that if your decision in the penalty phase of this trial is that the defendant should be put to death, the sentence will be carried out. On the other hand, if you determine that life without the possibility of parole is the proper sentence, you are instructed that the defendant will never be released from prison. Whether or not there are circumstances that might preclude either the death penalty or life without possibility of parole from being carried out, you should assume your sentence would be carried out for purposes of determining the appropriate sentence for this defendant."
In the past, we have declined to consider on direct appeal claims of excessive delay that were premised on evidence and matters outside the record on appeal. (E.g., People v. Barnett (1998) 17 Cal.4th 1044, 1182- 1183.) In this case, however, defendant's claim is cognizable on appeal because it is narrowly framed and may be resolved without reference to external matters. (People v. Hill (1992) 3 Cal.4th 959, 1014- 1016.)
Whether appellant's claim is "narrowly framed" (maj. opn., ante, at p. 134, fn. 5) is open to question. Whether it "may be resolved without reference to external matters" (ibid.) is not. It may not. That is because it is, in fact, based on such "external matters," including an assertion by appellant that respondent and the superior court "took nearly seven years to obtain a [sufficient] record," and did so only after he "was compelled to force [them] to provide him with transcripts which were correct versions of what transpired in the course of his case." As such, it is not similar to the point in People v. Hill (1992) 3 Cal.4th 959, 1014, which was a "frontal attack on the validity of the death penalty in all cases" predicated on the "delay inherent in the capital appeal process."
The parties stipulated during the capital trial that the Florida statute under which defendant was previously convicted involved nonconsensual sexual contact accomplished by the use of "physical force and violence not likely to cause serious personal injury ."
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