Does the Attorney General have an obligation to give a defendant notice of victim impact evidence?

Citing People v. Clark (1993) 5 Cal.4th 950, 1033, 22 Cal.Rptr.2d 689, 857 P.2d 1099, the Attorney General, however, argues that because the impact of the murder on the victim's family is one of the circumstances of the crime, the prosecution was not required to give any notice of the victim impact testimony. We disagree. "Although we have found `victim impact evidence admissible as a circumstance of the crime pursuant to section 190.3, factor (a)' [citation], generic, nonspecific notice that the prosecution intends to rely, as an aggravating factor, on the circumstances of the offense (see 190.3, factor (a)) fails to give adequate notice that it also intends to present victim impact evidence from surviving family members." (People v. Roldan, supra, 35 Cal.4th at p. 733, 27 Cal.Rptr.3d 360, 110 P.3d 289.) Moreover, the notice exception for "evidence in proof of the offense or special circumstances" ( 190.3, 4th par.), does not extend to victim impact evidence. (People v. Roldan, supra, 35 Cal.4th at p. 733, 27 Cal.Rptr.3d 360, 110 P.3d 289.)

The question whether the prosecution provided timely notice of the victim impact evidence is close on this record. Apart from the prosecution's assertions at the penalty phase, the record does not clearly support that the parties discussed that there would be victim impact evidence. It is also unclear whether the prosecution gave notice of this evidence "as soon thereafter as [it] learned of the existence of the

[30 Cal.Rptr.3d 553]

evidence. [Citation.]" (People v. Roldan, supra, 35 Cal.4th at p. 733, 27 Cal.Rptr.3d 360, 110 P.3d 289.) In any event, we need not decide whether the prosecution's notice was timely under section 190.3 because defendant suffered no prejudice.

[30 Cal.Rptr.3d 553]