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F 8.81.21 n1 Drive-By Murder Special Circumstance: Constitutional Challenge.
People v. Rodriguez (98) 66 CA4th 157 [77 CR2d 676], a non-capital LWOP case, rejected several constitutional challenges to PC 190.2(a)(21), the drive-by murder special circumstance. The court rejected an argument that the statute is facially unconstitutional as “overbroad” in reliance on the general rule that a statute must be incapable of constitutional application in any circumstance in order to be found facially invalid. However, because Rodriguez was a non-capital case, it does not resolve the more compelling 8th Amendment argument applicable to capital cases which requires special circumstances to rationally narrow the class of death-eligible individuals. If the drive-by murder special is overinclusive, then an 8th Amendment challenge could be mounted against it in a capital case, even if it does encompass circumstances which are constitutionally permissible. (See U.S. v. Cheely (9th Cir. 1994) 36 F3d 1439, 1444 [“The constitutional defect in [these statutes] is that they create the potential for impermissibly disparate and irrational sentencing because they encompass a broad class of death-eligible defendants without providing guidance to the sentencing jury as to how to distinguish among them.”].)
People v. Rodriguez (98) 66 CA4th 157 [77 CR2d 676] also rejected a substantive due process challenge to PC 190.2(a)(21), the drive-by murder special circumstance. Specifically, the court rejected arguments that the special circumstance, by proscribing any killing resulting from the shooting out of a vehicle, was not reasonably related to the intended deterrence and failed to require that the vehicle be an instrumentality of the crime. [See Brief Bank # B-771 forbriefing on this issue.]
