Frye

I generally concur in the opinion of the court.

I write separately because I would reject, at the very threshold, appellant’s contention that the sentence of death imposed on him in the judgment on appeal amounts to cruel and/or unusual punishment, in violation of the Eighth Amendment to the United States Constitution and article I, section 17 of the California Constitution, because of the effect that it has assertedly had on him as he has awaited its execution during years in confinement. “Appellate jurisdiction,” however, “is limited to the four comers of the record on appeal” (In re Carpenter (1995) 9 Cal.4th 634, 646 [ 38 Cal.Rptr.2d 665 , 889 P.2d 985 ]), and to “matters” that are “properly subject to judicial notice” (People v. Collie (1981) 30 Cal.3d 43, 57, fn. 10 [ 177 Cal.Rptr. 458 , 634 P.2d 534 , 23 A.L.R.4th 776 ]). By its very terms, appellant’s claim, which has arisen postjudgment, goes beyond the record and judicial notice. It is not trivial. But it may not be presented here.

Whether appellant’s claim is “narrowly framed” (maj. opn., ante, at p. 1030, fn. 5) is open to question. Whether it “may be resolved without reference to external matters” (ibid.) is not.…

I concur fully in the majority’s decision to affirm the death judgment entered against defendant for the robbery and murder of his neighbors, the Brandts, in their rural home in Amador County. However, I disagree with the majority’s conclusion that the trial court erred, albeit nonprejudicially, in excluding evidence offered by defendant to mitigate his prior felony conviction for sexual battery at the penalty phase. Documentary proof that defendant had suffered such a conviction in Florida in 1977 was introduced by the People in its penalty case-in-chief.

As the majority observes, the general rule that the sentencer in a capital case cannot be barred from considering favorable evidence bearing on the defendant’s character and background and the capital offense is not absolute. (See- Skipper v. South Carolina (1986) 476 U.S. 1, 4 [ 106 S.Ct. 1669, 1670-1671 , 90 L.Ed.2d 1 ]; Lockett v. Ohio (1978) 438 U.S. 586, 604 [ 98 S.Ct. 2954, 2964-2965 , 57 L.Ed.2d 973 ].) The trial court retains the authority, and indeed has a duty, to exclude evidence having no tendency in reason to prove a fact or circumstance which the sentencer could reasonably deem to have mitigating value. (Lockett…

A jury convicted defendant Jerry Grant Frye of two counts of first degree murder (Pen. Code, §187; all further statutory references are to *931 this code unless noted otherwise), first degree robbery (§ 211), residential burglary (§ 459), and the unlawful driving and taking of a vehicle (Veh. Code, § 10851). The jury also found true the allegations that defendant was armed with a firearm and personally used a firearm during the commission of these offenses (§§ 12022, subd. (a), 12022.5). Having found true the special circumstance allegations that defendant committed multiple murders (§ 190.2, subd. (a)(3)), and that the murders were committed while defendant was engaged in robbery and burglary (§ 190.2, subd. (a)(17)), the jury set the penalty at death. The trial court denied defendant’s motion to modify the sentence (§ 190.4, subd. (e)). This appeal is automatic (Cal. Const., art. VI, § 11; § 1239).

For the reasons stated below, the judgment is affirmed in its entirety.

I. Facts

A. Prosecution’s Case at the Guilt Phase

The prosecution’s chief witness, Jennifer Warsing, testified under a grant of immunity. Warsing first met defendant in a Sacramento bar in April 1984…