When will a defendant appeal against a finding that a jury's instruction to exclude victim impact evidence from the penalty phase was incorrect?

California, United States of America

The following excerpt is from People v. Brown, 15 Cal.Rptr.3d 624, 33 Cal.4th 382, 93 P.3d 244 (Cal. 2004):

Defendant makes no argument warranting reconsideration of our conclusions. Nor does he cite anything in the record indicating the jurors in his case were improperly influenced by the instruction in their deliberations. (See People v. Ortiz (2003) 109 Cal.App.4th 104, 119, fn. 7, 134 Cal.Rptr.2d 467.) Accordingly, we find no error.
Prior to commencement of the penalty phase, defense counsel moved to exclude victim impact evidence on the ground its admission would violate the proscription against ex post facto laws because such evidence was not admissible at the time defendant committed his crimes. (See People v. Boyd (1985) 38 Cal.3d 762, 775-776, 215 Cal.Rptr. 1, 700 P.2d 782.) The trial court declined to do so, and defendant now argues the ruling was constitutional error.

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