F 8.81.2

F 8.81.2 n1 Prior Murder Special: Defense Of Duress Should Apply (PC 190.2(a)(2)).

F 8.81.2 n2 Prior Murder Special Circumstance (PC § 190.2(a)(2)): Overbreadth Constitutional Challenge.

[Additional briefing in the form of a demurrer with points and authorities is available to FORECITE subscribers. Ask for Brief Bank # B-647.]

F 8.81.2 n3 Prior Murder Special Circumstance: Applicability To Prior Juvenile Murder Conviction.

See People v. Trevino (2001) 26 C4th 237, 244 [109 CR2d 567] [sentence enhancement for prior-murder special circumstance is proper where prior murder conviction was received as juvenile in another state].

F 8.81.2 n4 Prior Murder Special: Offender’s Age At Time Of Prior Offense Not Relevant For Purposes Of Sentencing Under PC 190.2(a)(2).

(See People v. Trevino (2001) 26 C4th 237, 244 [109 CR2d 567] [prior murder special circumstance allegation can be predicated on juvenile’s out of state murder conviction at time when juvenile could not have been tried for murder in California].)

F 8.81.2 n5 Financial Gain Special: Overbreath Challenge When Only One Special Circumstances Is Charged (PC 190.2(a)(1)).

The dissenting opinion in People v. Crew (2003) 31 C4th 822 includes the following Eighth Amendment objection to the California Supreme Court’s interpretation of the financial gain special circumstance:

As the majority correctly notes, we have developed two interpretations of the financial gain special circumstance. In 1984, we adopted a narrow construction of the financial gain special circumstance in a case in which multiple special circumstances were alleged “to minimize those cases in which multiple special circumstances will apply to the same conduct.” (People v. Bigelow (84) 37 Cal.3d 731, at p. 751.)

Four years later in Howard, we interpreted the financial gain special circumstance more broadly to require only that the “purpose” of the murder have been for financial gain. (People v. Howard (88) 44 C3d 375 at p. 410, fn. 10.) This standard expanded Bigelow’s formulation of the financial gain special circumstance to “cover a broad range of situations” when only one special circumstance is charged and overlap of multiple special circumstances is not a concern. (People v. Howard, supra, 44 Cal.3d at p. 410.) Justice Broussard, who authored the majority opinion in Bigelow, dissented from this broader interpretation because “it gives a dual meaning to the phrase ‘for financial gain.’ ” (Id. at p. 447 (conc. & dis. opn. of Broussard, J.).) Justice Broussard’s concern, which I share, is that this second interpretation allows the financial gain special circumstance to be interpreted too broadly where one special circumstance is charged. (People v. Crew, 31 C4th at 861.)

It remains to be seen how the federal courts will rule on this claim. Therefore, it would be wise to preserve it in state court.

F 8.81.2 n6 Prior Murder Special Circumstance: Applicability To Out Of State Prior.

(See People v. Martinez (2003) 31 C4th 673, 681-88 [Texas murder conviction was for an offense that, under Texas law, included all elements of second degree murder, as defined by California law, thereby satisfying section 190.2]; but see dissent of Kennard, J. and critique in FORECITE F 8.81.2 n7.)

F 8.81.2 n7 Critique Of People v. Martinez (2003) 21 C4th 673, 681-88.

Martinez is correct that imperfect self-defense is not an element of murder in California. But malice under PC 188 is such an element; and if a defendant establishes imperfect self-defense or the jury has reasonable doubt, then by definition, the defendant has not been proved to have acted with malice as defined in PC 188. Lots of cases say that: the most important one was In re Christian S. (94) 7 C4th 768, 778-79. Thus, murder is a narrower offense (because its required mens rea is similarly narrower) in California than in Texas. In California, the definition of the element of “malice” excludes situations of imperfect self-defense; in Texas, the definition of “malice” includes situations of imperfect self-defense. Consequently, if all we know is that a defendant was convicted in Texas for a crime that under Texas law is intentional murder, and we know no more, we can have no idea whether that offense would be punishable as murder in California — the statutory test in PC 190.2 — because we have no idea whether that Texas conviction was for an offense that involved malice as defined under California law. There mere fact that an element may have the same name in two different jurisdictions doesn’t mean it’s the same element.

The illogic of Martinez is all the more apparent when one looks at the end of page 585. It’s true that “it was conceivable [Martinez] could have mounted a defense of . . . imperfect self-defense.” But a defendant could hardly “mount a defense” of imperfect self-defense in Texas, because the doctrine doesn’t exist. So the only question is whether the California prosecution — which has the burden of proof on every element of the special circumstance — met its burden of proving that the Texas murder conviction was for a crime “punishable as first or second degree murder” in California. Whether one goes by just the abstract elements of the offense (by which malice in California means something narrower than it does in Texas), or the “entire record of conviction” under Guerrero (by which there wasn’t any evidence of the facts underlying the Texas offense that would necessarily establish it involved malice as defined by California law), the prosecution had no such evidence. And the defendant is supposed to have no burden at all. The Martinez court affirmed because the defendant failed to meet a burden which the constitution plainly prohibits imposing on him.

The law of the case discussion in Martinez is also illogical because “law of the case” is merely a judge-made doctrine, and thus must obviously fall to a statute. Here, when Martinez was sentenced to death, he was statutorily entitled to an automatic appeal to the California Supreme Court under PC 1239(b). The Court of Appeal’s earlier opinion was long before the death judgment; it was a prosecution appeal from the magistrate’s dismissal of the special circumstance allegation. The Court of Appeal’s earlier opinion, of course, merged into the ultimate death judgment. Thus, to say the earlier Court of Appeal opinion is “law of the case” is to deny Martinez his automatic statutory appeal to the California Supreme Court on that part of the judgment.