Brief Bank # B-542
CLIFF GARDNER
GARDNER & DERHAM
Ghirardelli Square
Cocoa Building, Suite 450
900 North Point
San Francisco, CA 94109
MELISSA JOHNSON
200 McAllister Street
San Francisco, CA 94102
Attorneys for Appellant
Miguel B.
IN THE SUPREME COURT OF THE
STATE OF CALIFORNIA
PEOPLE OF THE STATE OF ) Supreme Court No. S004764
CALIFORNIA, )
) Superior Court (Santa Clara)
Plaintiff and Respondent, ) No. 93351
)
vs. )
)
MIGUEL A. B., )
)
Defendant & Appellant. )
)
APPELLANT’S OPENING BRIEF
ON REMAND FROM THE UNITED STATES SUPREME COURT
AUTOMATIC APPEAL FROM THE JUDGMENT OF THE SUPERIOR COURT
OF THE STATE OF CALIFORNIA, SANTA CLARA COUNTY
Honorable Thomas C. Hastings, Presiding
TABLE OF CONTENTS
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . iv
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . 1
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . 3
I. PURSUANT TO THE UNITED STATES SUPREME COURT’S RECENT DECISION IN STRINGER V. BLACK (1992) ___ U.S. ___, 112 S.CT. 1130, THE VAGUENESS LIMITATIONS OF THE EIGHTH AMENDMENT MUST APPLY TO THE AGGRAVATING FACTORS SET
FORTH IN CALIFORNIA PENAL CODE SECTION 190.3 . . . . . 3
A. Under Stringer, All Aggravating Factors Which Play A Central Role In The Jury’s Determination Of The Appropriate Penalty Must Meet Eighth Amendment
Vagueness Requirements . . . . . . . . . . . . . . 4
B. Because Aggravating Factors Under Section 190.3 Play A Central Role In The Jury’s Determination Of The Appropriate Punishment, Stringer Requires That They Meet Eighth Amendment Vagueness
Limitations . . . . . . . . . . . . . . . . . . . 10
II. PENAL CODE SECTIONS 190.3, SUBDIVISIONS (A) AND (B) VIOLATE THE EIGHTH AMENDMENT, AS DID THE TRIAL COURT’S FAILURE TO INSTRUCT THE JURY AS TO WHICH FACTORS WERE
MITIGATING AND WHICH WERE AGGRAVATING . . . . . . . . 14
A. Section 190.3, Subdivision (a), Which Allows The Jury To Separately Weigh The “Circumstances Of The Crime” As A Factor In Determining Whether A Defendant Should Live Or Die Violates The Eighth Amendment Because It Increases The Risk Of Arbitrary And Capricious Application Of The Death
Penalty . . . . . . . . . . . . . . . . . . . . 15
B. Section 190.3, Subdivision (b), Which Allows The Jury To Weigh As An Aggravating Factor The “Presence Or Absence Of Criminal Activity By The Defendant Which Involved The Use or Attempted Use of Force Or Violence” Violates The Eighth Amendment Because, Absent Instructions Defining Elements Of The Prior Crimes, It Allows Arbitrary
And Capricious Sentencing . . . . . . . . . . . . 26
C. Instructing the Jury In The Terms Of A Unitary List Of Aggravating And Mitigating Factors, Without Instruction As To Which Factors Are Aggravating And Which Are Mitigating, Or As To The Meaning Of Aggravation, Violates The Eighth
Amendment . . . . . . . . . . . . . . . . . . . . 28
1. The possibility that the jury will treat statutory mitigating factors as aggravating factors creates the risk of arbitrary sentencing in violation of the Eighth
Amendment . . . . . . . . . . . . . . . . . 30
2. Instructions which leave jurors free to consider the absence of statutory mitigating factors as aggravating factors creates the risk of arbitrary sentencing in violation of
the Eighth Amendment . . . . . . . . . . . . 35
3. The reliance on age as an aggravating factor, as it is broadly defined by this Court, creates the risk of arbitrary sentencing in
violation of the Eighth Amendment . . . . . 36
III. EVEN IF THIS COURT WERE TO ENGAGE IN HARMLESS ERROR ANALYSIS, REVERSAL IS REQUIRED IN THIS CASE BECAUSE THE STATE WILL BE UNABLE TO SHOW THAT THE PRESENCE OF THREE UNCONSTITUTIONAL AGGRAVATING FACTORS WAS HARMLESS
BEYOND A REASONABLE DOUBT . . . . . . . . . . . . . . 39
IV. THE INFECTION OF THE WEIGHING PROCESS WITH NUMEROUS INVALID AGGRAVATING FACTORS CANNOT BE CURED BY APPELLATE REWEIGHING OF AGGRAVATING AND MITIGATING
FACTORS . . . . . . . . . . . . . . . . . . . . . . . 43
A. In The Absence Of Jury Findings As To Which Aggravating Factors The Jury Relied Upon In Sentencing Mr. B To Death, It Would Violate The Eighth Amendment For This Court To Itself Reweigh
Aggravation And Impose A Death Sentence . . . . . 44
B. Because This Court Has Long Held That In Capital Cases, The Jury Has The Sole Responsibility For Selecting The Penalty To Be Imposed, It Would Violate Due Process For This Court To Itself Reweigh Aggravation And Impose A Death
Sentence . . . . . . . . . . . . . . . . . . . . 47
V. MR. B INCORPORATES BY REFERENCE ALL ARGUMENTS MADE IN
HIS OPENING, REPLY AND SUPPLEMENTAL BRIEFS . . . . . . 50
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . 51
TABLE OF AUTHORITIES
CASES
Arnold v. State (Ga. 1976) 224 S.E.2d 386 . . . . . . . . . 33
Bacigalupo v. California (1992) ___ U.S. ___, 113 S.Ct. 32 . . 2
Booth v. Maryland (1987) 482 U.S. 496 . . . . . . . . . . . 19
Caldwell v. Mississippi (1985) 472 U.S. 320 . . . . . . . . 45
California v. Brown (1987) 479 U.S. 538 . . . . . . . . . . 33
Cartwright v. Maynard (10th Cir. 1987) 822 F.2d 1477. . . . 18
Champlin Refinery Co. v. Corporation Commission of
Oklahoma (1932) 286 U.S. 210 . . . . . . . . . . . . . 18
Clemons v. Mississippi (1990) 494 U.S. 738 . . . . . . . . . 7
Clemons v. State (Miss. 1992) 593 So.2d 1004 . . . . . . . . 42
Cramp v. Board of Public Instruction (1961) 368 U.S. 278 . . 18
Enmund v. Florida (1982) 458 U.S. 782 . . . . . . . . . . . 45
Espinoza v. Florida (1992) ___ U.S. ___, 112 S.Ct. 2926 . . 9
Furman v. Georgia (1972) 408 U.S. 238 . . . . . . . . . . . 4
Gardner v. Florida (1977) 430 U.S. 349 . . . . . . . . . . . 47
Godfrey v. Georgia (1980) 446 U.S. 420 . . . . . . . . . . . 4
Gregg v. Georgia (1976) 428 U.S. 153 . . . . . . . . . . . . 5
Hicks v. Oklahoma (1980) 447 U.S. 343 . . . . . . . . . . . 47
In re Anderson (1968) 69 Cal.2d 613 . . . . . . . . . . . . 48
Johnson v. Thigpen (5th Cir. 1986) 806 F.2d 1243 . . . . . . 5
Jurek v. Texas (1976) 428 U.S. 262 . . . . . . . . . . . . . 5
Lanzetta v. New Jersey (1939) 306 U.S. 451 . . . . . . . . . 18
Lewis v. Jeffers (1990) 497 U.S. 764 . . . . . . . . . . . . 4
Lockett v. Ohio (1978) 438 U.S. 536 . . . . . . . . . . . . 45
Lowenfeld v. Phelps (1988) 484 U.S. 231 . . . . . . . . . . 5
Maynard v. Cartwright (1988) 486 U.S. 356 . . . . . . . . . . 7
McCleskey v. Kemp (1987) 481 U.S. 279 . . . . . . . . . . . . 20
Payne v. Tennessee (1991) ___ U.S. ___, 115 L.Ed.2d 720 . . . 19
Penry v. Lynaugh (1989) 492 U.S. 302 . . . . . . . . . . . . 19
People v. Bacigalupo (1991) 1 Cal.4th 103 . . . . . . . . . . 2
People v. Brown (1985) 40 Cal.3d 512 . . . . . . . . . . . . 11
People v. Davenport (1985) 41 Cal.3d 247 . . . . . . . . . . 30
People v. Duncan (1991) 53 Cal.3d 955 . . . . . . . . . . . . 11
People v. Edwards (1991) 54 Cal.3d 787 . . . . . . . . . . . 30
People v. Green (1956) 47 Cal.2d 209 . . . . . . . . . . . . 48
People v. Howk (1961) 56 Cal.2d 687 . . . . . . . . . . . . . 48
People v. Linden (1959) 52 Cal.2d 1 . . . . . . . . . . . . . 48
People v. Lucero (1988) 44 Cal.3d 1006 . . . . . . . . . . . 30
People v. Lucky (1988) 45 Cal.3d 259 . . . . . . . . . . . . 29
People v. Melton (1988) 44 Cal.3d 713 . . . . . . . . . . . . 30
People v. Mitchell (1966) 63 Cal.2d 805 . . . . . . . . . . . 48
People v. Noguera (1992) ___ Cal.4th ___, 92 Daily Journal
D.A.R. 17480 . . . . . . . . . . . . . . . . . . . . . . 19
People v. Proctor (1992) ___ Cal.4th ___, 92 Daily Journal
D.A.R. 17442 . . . . . . . . . . . . . . . . . . . . . . 19
People v. Rittger (1960) 54 Cal.2d 720 . . . . . . . . . . . 48
People v. Tuilaepa (1992) ___ Cal.4th ___, 92 Daily Journal
D.A.R. 17469 . . . . . . . . . . . . . . . . . . . . . . 19
People v. Visciotti (1992) 2 Cal.4th 1 . . . . . . . . . . . 10
Phillips Petroleum v. State of Oklahoma (1950) 340 U.S. 190 . 18
Proffitt v. Florida (1976) 428 U.S. 242 . . . . . . . . . . . 16
Pulley v. Harris (1984) 465 U.S. 37 . . . . . . . . . . . . . 5
Richmond v. Lewis (1992) 92 Daily Journal D.A.R. 16062 . . . 43
Shell v. Mississippi (1990) 111 S.Ct. 313 . . . . . . . . . . 16
Sochor v. Florida (1992) ___ U.S. ___, 112 S.Ct. 2114 . . . . . 9
State v. David (La. 1985) 468 So.2d 1126 . . . . . . . . . . 33
Stringer v. Black (1992) ___ U.S. ___, 112 S.C. 1130 . . . . . 2
United States v. L. Cohen Grocery Co. (1921) 255 U.S. 81 . . 18
Zant v. Stephens (1983) 462 U.S. 862 . . . . . . . . . . . . . 4
STATUTES
Arizona
Rev. Stat. Ann. 13-703(D) . . . . . . . . . . . . . . . 44
California Penal Code
Section 187 . . . . . . . . . . . . . . . . . . . . . . . 1
Section 190.1 . . . . . . . . . . . . . . . . . . . . . 10
Section 190.3 . . . . . . . . . . . . . . . . . . . . . . 1
Section 190.3, subdivision (a) . . . . . . . . . . . . . 14
Section 190.3, subdivision (a)(3) . . . . . . . . . . . . 1
Section 190.3, subdivision (a)(17)(i) . . . . . . . . . . 1
Section 190.3, subdivision (b) . . . . . . . . . . . . . 14
Section 190.3, subdivision (c) . . . . . . . . . . . . . 1
Section 190.3, subdivision (d) . . . . . . . . . . . . . 14
Section 190.3, subdivision (g) . . . . . . . . . . . . . 14
Section 190.3, subdivision (h) . . . . . . . . . . . . . 14
Section 190.3, subdivision (i) . . . . . . . . . . . . . 14
Florida
Section 921.141(3) . . . . . . . . . . . . . . . . . . . 44
Mississippi
Section 99-3-19(2) . . . . . . . . . . . . . . . . . . . 5
Section 99-19-101 . . . . . . . . . . . . . . . . . . . . 6
Section 99-19-101(2)(d) . . . . . . . . . . . . . . . . . 6
Section 99-19-101(3) . . . . . . . . . . . . . . . . . . 44
Section 99-19-101(c) . . . . . . . . . . . . . . . . . . 11
Section 99-19-101(2)(c) . . . . . . . . . . . . . . . . . 6
Section 99-19-101 . . . . . . . . . . . . . . . . . . . 11
UNITED STATES CONSTITUTION
Eighth Amendment . . . . . . . . . . . . . . . . . . . . 4
OTHER AUTHORITIES
Weisburg, Deregulating Death, 1983 Sup. Ct. Rev. 305 . . 21
INTRODUCTION
On April 30, 1984, the Santa Clara County district attorney filed an information against appellant Miguel B, charging him with two counts of murder in violation of Penal Code section 187. (CT 184-185.) The information added two special circumstance allegations: multiple murder in violation of section 190.3, subdivision (a)(3) and murder during a robbery in violation of section 190.3, subdivision (a)(17)(i). (CT 184-185.) Mr. B pleaded not guilty. (CT 189.)
On April 9, 1987, the jury convicted Mr. B on both counts of murder and found both special circumstances true. (CT 338.) At the separate penalty phase, and in accord with section 190.3, subdivision (c), the trial court instructed the jury as to the factors it was to consider in determining if Mr. B should live or die. (RT 4025.) The court made clear that in determining the appropriate penalty, the jury was to weigh the aggravating factors against the mitigating factors:
“Both the people and the defendant have a right to expect that you will conscientiously consider and weigh the factors in aggravation and mitigation and that you will reach a just decision as to the appropriate penalty in this case.” (RT 4027.)
Similarly, in instructing the jury that the weighing process was not a mere mechanical “counting of factors,” the court once again advised the jury that it was to “weigh[] aggravating and mitigating circumstances . . . .” (RT 4029.) The court told the jury that it should determine the appropriate penalty by “weighing the various circumstances . . . .” (RT 4030.)
On April 20, 1987, the jury sentenced Mr. B to death. (CT 354.) The trial court denied Mr. B’s motion to modify the death sentence and, on June 12, 1978, imposed a death sentence. (CT 534, 538.)
This Court affirmed the decision on December 9, 1991. (People v. Bacigalupo (1991) 1 Cal.4th 103.) On May 29, 1992, Mr. B filed a Petition for Certiorari, arguing that the United States Supreme Court should vacate this Court’s December 9, 1992 decision and remand for reconsideration in light of Stringer v. Black (1992) ___ U.S. ___, 112 S.Ct. 1130. (See Bacigalupo v. California, No. 91-8445, Petition for Certiorari at p. 20-22.) On October 5, 1992, the United States Supreme Court agreed, granted certiorari, vacated this Court’s decision, and remanded for reconsideration in light of Stringer v. Black, supra. (Bacigalupo v. California (1992) ___ U.S. ___, 113 S.Ct. 32.)
ARGUMENT
I. PURSUANT TO THE UNITED STATES SUPREME COURT’S RECENT DECISION IN STRINGER V. BLACK (1992) ___ U.S. ___, 112 S.CT. 1130, THE VAGUENESS LIMITATIONS OF THE EIGHTH AMENDMENT MUST APPLY TO THE AGGRAVATING FACTORS SET FORTH IN CALIFORNIA PENAL CODE SECTION 190.3.
Prior to the United States Supreme Court’s recent decision in Stringer v. Black, supra, 112 S.Ct. 1130, this Court held that the aggravating factors which a California jury is instructed to consider at the penalty phase of a capital case did not have to meet the vagueness limitations of the Eighth Amendment because they were not used to narrow the category of defendants eligible for the death penalty; that function is performed at the guilt phase by the special circumstance findings. (People v. Bacigalupo, supra, 1 Cal.4th at p. 148.) In Stringer, the Court held that if a state requires jurors to formally consider aggravating and mitigating circumstances in determining whether to sentence a defendant to death, it may not rely on aggravating factors of vague or imprecise content. (Id. at p. 1136‑1140.)
Stringer involved a capital conviction in Mississippi, a state which, like California, narrows the category of death eligible defendants at the guilt phase. As more fully discussed below, because California’s capital sentencing scheme is in all significant respects identical to Mississippi, the aggravating factors upon which California jurors rely in sentencing a defendant to death must also meet Eighth Amendment vagueness limitations.
A. Under Stringer, All Aggravating Factors Which Play A Central Role In The Jury’s Determination Of The Appropriate Penalty Must Meet Eighth Amendment Vagueness Requirements.
To fully understand Stringer‘s application to California, it is essential to understand both the constitutional requirement that a capital sentencing scheme genuinely narrow the class of defendants subject to the death penalty as well as the precise way in which the Mississippi capital sentencing scheme performs this function. In Godfrey v. Georgia (1980) 446 U.S. 420 the Supreme Court made clear that under the Eighth Amendment “[a] capital sentencing scheme must . . . provide a ‘meaningful basis for distinguishing the few cases in which [the penalty] is imposed from the many cases in which it is not.'” (446 U.S. at p. 428, quoting Furman v. Georgia (1972) 408 U.S. 238, 313 [White, J., concurring]. Accord Lewis v. Jeffers (1990) 497 U.S. 764, 110 S.Ct. 3092, 3099.) Such a scheme must “genuinely narrow the class of persons eligible for the death penalty and . . . reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.” (Zant v. Stephens (1983) 462 U.S. 862, 877.)
This narrowing function may occur at a separate penalty phase hearing, through the use of aggravating factors which the jury must find true before it may impose death. (Pulley v. Harris (1984) 465 U.S. 37, 50; Gregg v. Georgia (1976) 428 U.S. 153, 162-164 [reviewing Georgia scheme]; Proffitt v. Florida, 428 U.S. 242, 247‑250 [reviewing Florida scheme].) Alternatively, the narrowing function may occur at the guilt phase, as where the legislature has narrowed the class of defendants eligible for the death penalty by providing a more limited category of murder for which the death penalty can be imposed. (Lowenfeld v. Phelps (1988) 484 U.S. 231, 244-246 [examining Louisiana scheme]; Jurek v. Texas (1976) 428 U.S. 262, 270-271 [Texas].)
Mississippi, like Texas and Louisiana, has chosen to perform the constitutionally required narrowing function at the guilt phase through its narrow definition of capital murder. (Johnson v. Thigpen (5th Cir. 1986) 806 F.2d 1243, 1248-1249.) Under Mississippi law, a defendant is not eligible for the death penalty unless found guilty of capital murder, a category more narrow than the general category of murder. In fact, capital murder is limited to seven specific crimes. (Miss. Code Ann. section 99-3-19(2).)[1] Thus, the constitutional requirement of “distinguishing the few cases in which [the death penalty] is imposed from the many cases in which it is not” is performed at the guilt phase of the trial. (See Lowenfeld v. Phelps, supra, 484 U.S. at p. 244‑246.)
After this narrowing has taken place, and a defendant has been convicted of capital murder, the defendant receives a separate sentencing hearing at which the jury determines whether any of eight statutory aggravating factors exist. (Miss. Code Ann. section 99-19-101.) If the jury finds one of these eight factors, it must then determine if there are any mitigating factors “which outweigh the aggravating circumstances found to exist.” (Miss. Code section 99-19-101(2)(c).) “Based on these considerations [the jury is to determine] whether the defendant should be sentenced to life imprisonment or death.” (Miss. Code Ann. section 99-19-101(2)(d).)[2]
In Stringer, defendant was convicted of capital murder because the killing fit within one of the seven designated categories. At the separate sentencing hearing, the jury found three statutory aggravating factors. One of these aggravating factors ‑‑ authorizing a death sentence if the murder was “especially heinous, atrocious or cruel” ‑‑ was unconstitutionally vague. (See Clemons v. Mississippi (1990) 494 U.S. 738, 756, n.1. [conc. and dis. opn. of Blackmun, J.]; Maynard v. Cartwright (1988) 486 U.S. 356.) The Supreme Court addressed the question of whether consideration of such a vague aggravating factor in the weighing process was unconstitutional.
Citing Lowenfeld v. Phelps, supra, 484 U.S. 231, the state of Mississippi contended that because the narrowing function which made a defendant death eligible in Mississippi was performed at the guilt phase, there was no impropriety in relying on a vague factor which merely guided the jury’s discretion at the sentencing phase:
“[I]t is obvious that the Mississippi scheme provides the constitutionally required narrowing during the guilt phase. The separate sentence determination process, in which aggravating factors are found, is not part of the constitutionally required narrowing function. . . . The fact that the weighing process occurs after the constitutionally required narrowing takes place decreases its importance in the determination of the sentence. In fact, it takes it out of the realm of a weighing statute.” (Stringer v. Black, No. 90-6616, Brief of Respondent at p. 29.)
In explicitly rejecting this argument, the United States Supreme Court first observed that “[u]nlike the Mississippi process, in [the Louisiana scheme examined in Lowenfeld] the jury is not required to weigh aggravating against mitigating factors.” (112 S.Ct. at p. 1138, emphasis added.) Noting that Mississippi did require its juries to weigh aggravating and mitigating factors, the Court held that the vagueness limitations of the Eighth Amendment applied not only to those circumstances which made a defendant death eligible, but also applied to those aggravating factors which were solely used in the weighing process as well:
“[I]f a state uses aggravating factors in deciding who shall be eligible for the death penalty or who shall receive the death penalty, it cannot use factors which as a practical matter fail to guide the sentencer’s discretion. . . .
“. . . Although our precedents do not require the use of aggravating factors, they have not permitted a State in which aggravating factors are decisive to use factors of vague or imprecise content. A vague aggravating factor employed for the purpose of determining whether a defendant is eligible for the death penalty fails to channel the sentencer’s discretion. A vague aggravating factor used in the weighing process is in a sense worse, for it creates the risk that the jury will treat the defendant as more deserving of the death penalty than he might otherwise be by relying upon the existence of an illusory
circumstance.” (Stringer v. Black, supra, 112 S.Ct. at p. 1139, emphasis added.)[3]
It is also important to note that in rejecting the state’s proffered distinction between an aggravating factor used to fulfill the constitutionally required narrowing function, and one used merely in the weighing process, the Supreme Court explicitly rejected the only case law which had accepted such a distinction. In Johnson v. Thigpen, supra, the Fifth Circuit had held that any error in relying on a vague aggravating factor in Mississippi was of no constitutional significance precisely because the class of death eligible murders was already properly limited by Mississippi’s capital murder category. (806 F.2d at p. 1248-1249.) In Stringer, the Supreme Court repudiated this approach, noting that “the Fifth Circuit made a serious mistake in . . . Johnson v. Thigpen” by “accord[ing] no significance to the fact that in Mississippi aggravating factors are central in the weighing phase of a capital sentencing proceeding.” (Stringer v. Black, supra, 112 S.Ct. at p. 1140.)
It is thus clear under Stringer that where aggravating factors play a formal role in the sentencing process, they must meet Eighth Amendment vagueness limitations. This is so even where, as in Mississippi, the factors play no role in the constitutionally required narrowing process.
B. Because Aggravating Factors Under Section 190.3 Play A Central Role In The Jury’s Determination Of The Appropriate Punishment, Stringer Requires That They Meet Eighth Amendment Vagueness Limitations.
The sentencing scheme involved in Stringer is in all significant respects identical to the California scheme. In California, a defendant is not eligible for the death penalty unless found guilty of murder with at least one special circumstance. (Penal Code section 190.1.) In Mississippi, a defendant is not death eligible unless found guilty of the narrow class of capital murder. (Miss. Code Ann. section 99-3-19(2).) Both schemes seek to accomplish the constitutionally required narrowing function at the guilt phase. (See People v. Visciotti (1992) 2 Cal.4th 1, 74 [stating that in California, the constitutionally required narrowing function is performed by the special circumstance findings at the guilt phase].)
Similarly, both the California and Mississippi schemes require the jury, in determining whether a defendant shall live or die, to weigh aggravating and mitigating circumstances. In California, a defendant who is convicted of murder with a special circumstance receives a separate sentencing hearing at which the jury determines whether statutory aggravating factors outweigh mitigating factors. (Section 190.3.) These factors are set forth in section 190.3. If the jury finds that aggravation outweighs mitigation, it may return a death sentence. (People v. Brown (1985) 40 Cal.3d 512; Section 190.3.) The jury may not return a sentence of death unless aggravation outweighs mitigation. (People v. Duncan (1991) 53 Cal.3d 955, 978.) If the jury finds that mitigation outweighs aggravation, it returns a sentence of life without the possibility of parole. (Section. 190.3.) In Mississippi, the jury is also required to weigh aggravating and mitigating factors in determining the appropriate penalty. (Miss. Code Ann. section 99-19-101(c).)
It is clear that the aggravating factors set forth in section 190.3 have an identical function to the aggravating factors set forth in Mississippi Code section 99-19-101. Neither have a role in the constitutionally required narrowing function. Under both schemes, the purpose of these additional factors is to guide the sentencer’s discretion in determining whether death is the appropriate punishment.
For this reason, and just as in Mississippi, aggravating factors in California “are central in the weighing phase of a capital sentencing proceeding.” Stringer v. Black, supra, 112 S.Ct. at p. 1140.) “[A] vague aggravating factor used in the weighing process . . . creates the risk that the jury will treat the defendant as more deserving of the death penalty than he might otherwise be by relying upon the existence of an illusory circumstance.” (Stringer v. Black, supra, 112 S.Ct. at p. 1139.) Because the California scheme requires juries to weigh aggravating factors against mitigating factors in determining if a defendant lives or dies, the vagueness limitations of the Eighth Amendment must apply to the aggravating factors.
The only identifiable difference between the two statutes is that in Mississippi, unlike California, the jury must make a threshold finding that at least one aggravating factor exists before it can impose the death sentence. That difference is simply irrelevant to the analysis under Stringer. As Stringer was careful to point out, the use of a vague aggravating factor is improper “in deciding who shall be eligible for the death penalty or who shall receive the death penalty . . . .”
(Stringer v. Black, supra, 112 S.Ct. at p. 1139, emphasis added.)[4]
As any fair reading of Stringer reveals, the feature of the Mississippi statute which the Court deemed decisive was that the “sentencing scheme is one in which aggravating factors are critical in the jury’s determination whether to impose the death penalty.” (Stringer v. Black, supra, 112 S.Ct. at p. 1139.) In this respect, the California scheme is identical to Mississippi. As the remand in Bacigalupo v. Stringer, supra, 113 S.Ct.32 suggests, Stringer compels a conclusion that the vagueness limitations of the Eighth Amendment must apply to California’s aggravating factors.
II. PENAL CODE SECTIONS 190.3, SUBDIVISIONS (A) AND (B) VIOLATE THE EIGHTH AMENDMENT, AS DID THE TRIAL COURT’S FAILURE TO INSTRUCT THE JURY AS TO WHICH FACTORS WERE MITIGATING AND WHICH WERE AGGRAVATING.
In accord with Penal Code section 190.3, the jury in this case was instructed on the factors it should weigh in determining if Mr. B should live or die. In relevant part, the trial court advised the jury that it could weigh the following circumstances:
“The circumstances of the crime of which the defendant was convicted . . . . [Section 190.3, subdivision (a)]
“The presence or absence of criminal activity by the defendant which involved the use or attempted use of force or violence . . . . [Section 190.3, subdivision (b)]
“Whether or not the offense was committed while the defendant was under the influence of extreme mental or emotional disturbance. [Section 190.3, subdivision (d)]
“Whether or not the defendant acted under extreme duress or under the substantial domination of another person. [Section 190.3, subdivision (g)]
“Whether or not at the time of the offense the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease or defect or the effects of intoxication. [Section 190.3, subdivision (h)]
“The age of the defendant at the time of the crime. [Section 190.3, subdivision (i)]
“Any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime and any sympathetic or other aspect of defendant’s character, history or record, or evidence of any mental or emotional condition of the defendant as a basis for a sentence less than death, whether or
not related to the offense for which he is on trial.” (RT 4025‑4026.)
The trial court did not designate which of these factors were aggravating and which were mitigating. (RT 4025‑4026.)
As more fully discussed below, factors (a) and (b) are unconstitutionally vague under the Eighth Amendment. Moreover, the trial court’s failure to designate which factors were aggravating and which were mitigating also violated the Eighth Amendment.
A. Section 190.3, Subdivision (a), Which Allows The Jury To Separately Weigh The “Circumstances Of The Crime” As A Factor In Determining Whether A Defendant Should Live Or Die Violates The Eighth Amendment Because It Increases The Risk Of Arbitrary And Capricious Application Of The Death Penalty.
In Stringer v. Black, supra, the Supreme Court made clear that the problem with using a vague aggravating factor in the actual weighing process was that it “create[d] the risk that the jury will treat the defendant as more deserving of the death penalty than he might otherwise be by relying upon the existence of an illusory circumstance” and that it “create[d] the possibility . . . of randomness . . . .” (Stringer v. Black, supra, 112 S.Ct. at p. 1139.) “Employing an invalid aggravating factor in the weighing process ‘creates the possibility of randomness . . . by placing a thumb [on] death’s side of the scale . . . thus creat[ing] the risk [of] treat[ing] the defendant as more deserving of the death penalty.” (Sochor v. Florida, supra, 112 S.Ct. at p. 2119, citations omitted.)
In order to minimize this risk of arbitrary and capricious application of the death penalty, the Court has long held that a state’s aggravating factors must furnish the sentencer with “clear and objective standards” that provide “specific and detailed guidance.” (Lewis v. Jeffers, supra, 110 S.Ct. at p. 3099; Godfrey v. Georgia, supra, 446 U.S. 420, 428; Gregg v. Georgia, supra 428 U.S. at p. 198; Proffitt v. Florida, supra, 428 U.S. 242.)
In applying this standard, the Court has held that an aggravating circumstance which instructs the sentencer to look at the circumstances of the crime to see if it was “heinous, atrocious and cruel” is unconstitutional. (Shell v. Mississippi (1990) 111 S.Ct. 313; Clemons v. Mississippi, supra, 494 U.S. 738; Maynard v. Cartwright, supra, 486 U.S. 356.) Similarly, an aggravating circumstance that instructs the sentencer to look at the circumstances of the crime to see if it was “outrageously or wantonly vile, horrible or inhuman” is unconstitutional. (Godfrey v. Georgia, supra, 446 U.S. at p. 428-433.)
It is clear from these cases that an aggravating factor which merely instructs the sentencer to look at the circumstances of the crime, without even attempting any further limitation or guidance, is even more vague. Indeed, in several cases the United States Supreme Court has held that a sentencer may not simply look at the circumstances surrounding a crime and determine that a death penalty is appropriate. (See, e.g., Maynard v. Cartwright, supra, 486 U.S. at p. 363; Godfrey v. Georgia, supra, 446 U.S. at p. 429‑433; Furman v. Georgia (1972) 408 U.S. 238.) As Maynard stated, the Court has “plainly rejected the submission that a particular set of facts surrounding a murder, however shocking they might be, were enough in themselves, and without some narrowing principle to apply to those facts, to warrant the imposition of the death penalty.” (486 U.S. at p. 363.)
Pursuant to these authorities, an aggravating factor which allows the jury to impose death based on the “circumstances of the crime” makes the California scheme look very much like the standardless scheme invalidated in Furman v. Georgia, supra, 408 U.S. 238. Such an aggravator does nothing to limit the discretion of the jury. As the Tenth Circuit has stated in a similar context:
“We agree that all of the circumstances surrounding a murder must be examined to determine whether the murder was ‘especially heinous atrocious, or cruel,’ but there must be some objective standard that specifies which circumstances support such a determination. Consideration of all the circumstances is permissible; reliance upon all of the circumstances is not. . . . The discretion of a sentencer who can rely upon all of
the circumstances of a murder is as complete and as unbridled as the discretion afforded the jury in Furman.” (Cartwright v. Maynard (10th Cir. 1987) 822 F.2d 1477, 1491, aff’d, 486 U.S. 356, emphasis added.)
Similarly, in this case it would be entirely permissible for the jury to consider the circumstances of the crime in evaluating the existence of other, properly defined aggravating factors. What is impermissible is for the circumstances of the crime –- “without some narrowing principle to apply to those facts” — to in and of themselves serve as an aggravating factor the jury may weigh in the process which leads to death. This portion of section 190.3, subdivision (a) violates the Eighth Amendment.[5]
Mr. B recognizes that in three opinions issued last month, this Court rejected a challenge to section 190.3, subdivision (a). (People v. Proctor (1992) ___ Cal.4th ___ 92 Daily Journal D.A.R. 17442, 17459; People v. Noguera (1992) ___ Cal.4th ___, 92 Daily Journal D.A.R. 17480, 17497; People v. Tuilaepa (1992) ___ Cal.4th ___, 92 Daily Journal D.A.R. 17469, 17476-17477.)
In People v. Tuilaepa, supra, the Court first reasoned that the circumstances of the crime were “relevant to the sentencing decision.” (People v. Tuilaepa, supra, 92 Daily Journal D.A.R. at p. 17477.) Because section 190.3, subdivision (a) “direct[ed] the sentencer’s attention to specific, provable and commonly understandable facts about . . . the capital crime” the Court held that it was not impermissibly vague. (Id. at p. 17477.)
In People v. Proctor, supra, the Court reasoned as follows:
“The United States Supreme Court itself has established that the circumstances surrounding a capital offense constitute one of the criteria upon which the jury should base its penalty determination. (See, e.g., Penry v. Lynaugh (1989) 492 U.S. 302, 318, 106 L.Ed.2d 256, 109 S.Ct. 2934; Booth v. Maryland (1987) 482 U.S. 496, 502, 96 L.Ed.2d 2934, 107 S.Ct. 2529, overruled on other grounds in Payne v. Tennessee (1991) ___ U.S. ___, 115 L.Ed.2d 720, 111 S.Ct. 2597; Jurek v. Texas (1976) 428 U.S. 262, 304, 49 L.Ed.2d 944, 96 S.Ct. 2950 (plur. opn.). The high court has not stated or implied that the factor of the “circumstances of the offense” is unconstitutionally vague.” (People v. Proctor, supra, 92 Daily Journal D.A.R. at p. 17459.)
Proctor, Noguera, and Tuilaepa are wrong. In fact, contrary to Proctor‘s observation, the United States Supreme Court has both implied and stated that a sentencing scheme which allowed the sentencer to weigh the “circumstances of the crime” as an aggravating circumstance would be unconstitutional.
The starting point for this analysis is Furman v. Georgia, supra, where the Supreme Court held that a capital sentencing scheme could not allow complete discretion to the sentencer in deciding whether a defendant should be sentenced to death based merely on the facts of a particular case. (408 U.S. at p. 239‑240, 255‑257, 309‑310, 314.) Four years later, the Court made clear that the jury must be “given guidance about the crime . . . that the State, representing organized society, deems particularly relevant to the sentencing decision.” (Gregg v. Georgia, supra, 428 U.S. 153, 196 (opn. of Stewart, Powell and Stevens, JJ, emphasis added.) As the Court later explained, Furman and Gregg require that before a defendant may be sentenced to death “the State must establish rational criteria that narrow the decisionmaker’s judgment as to whether the circumstances of a particular defendant’s case” justify the sentence. (McCleskey v. Kemp (1987) 481 U.S. 279, 305, emphasis added.)
Based upon Furman, Gregg and McCleskey, and as noted above, the Tenth Circuit Court of Appeals has explicitly held that “circumstances of the crime” could not serve as a proper aggravating factor in a weighing state. (Cartwright v. Maynard, supra, 822 F.2d at p. 1491, aff’d, 486 U.S. 356 [“The discretion of a sentencer who can rely upon all of the circumstances of a murder is as complete and as unbridled as the discretion afforded the jury in Furman.”].)[6] The United States Supreme Court has unanimously affirmed this very portion of the Tenth Circuit’s decision, explicitly agreeing that the circumstances surrounding a crime, in and of themselves, may not serve as an aggravating factor to justify imposition of a death sentence:
“[We have] plainly rejected the submission that a particular set of facts surrounding a murder, however shocking they might be, were enough in themselves, and without some narrowing principle to apply to those facts, to warrant the imposition of the death penalty.” (Maynard v. Cartwright, supra, 486 U.S. at p. 363.)
Contrary to the mandate of Furman and Gregg, a statutory scheme which allows a sentencer to rely on the “circumstances of the crime” does not give any “guidance about the crime . . . that the State, representing organized society, deems particularly relevant to the sentencing decision.” Contrary to the mandate of McCleskey, such a scheme does nothing to “narrow the decisionmaker’s judgment as to whether the circumstances of a particular defendant’s case” justify a death sentence. Finally, and of most importance, such a scheme completely ignores Maynard‘s explicit rejection of the notion “that a particular set of facts surrounding a murder, however shocking they might be, were enough in themselves, and without some narrowing principle to apply to those facts, to warrant the imposition of the death penalty.”
What the Maynard opinion explicitly forbids is precisely what section 190.3, subdivision (a) allows. Thus, contrary to Proctor‘s observation, the United States Supreme Court has made clear that a sentencing scheme which allows the sentencer to weigh the facts and circumstances surrounding the crime as an aggravating factor ‑‑ “without some narrowing principle to apply to those facts” ‑‑ would be unconstitutional.
In reaching its contrary conclusion in Proctor, this Court cited Penry v. Lynaugh, supra, 492 U.S. at p. 318, Jurek v. Texas, supra, 428 U.S. at p. 304, and Booth v. Maryland, supra, 482 U.S. at p. 502 for the proposition that “[t]he United States Supreme Court itself has established that the circumstances surrounding a capital offense constitute one of the criteria upon which the jury should base its penalty determination.”
Reliance on Jurek and Penry to permit sentencers to rely on the “circumstances of the crime” as an aggravating factor is inappropriate for three separate reasons. First, as the language of both cases makes clear, the Court’s approval of an unbounded reliance on “circumstances of the crime” was explicitly limited to circumstances “that mitigate against imposing the death penalty.” (Penry v. Lynaugh, supra, 492 U.S. at p. 318.)
For example, in Penry v. Lynaugh, supra, the Supreme Court addressed the question of whether Texas jury instructions adequately allowed sentencers to consider mitigating evidence of defendant’s mental retardation. In addressing this claim, the Court noted that the Eighth Amendment required “that a State could not, consistent with the Eighth and Fourteenth Amendments, prevent the sentencer from considering and giving effect to evidence relevant to the defendant’s background or character or to the circumstances of the offense that mitigate against imposing the death penalty.” (492 U.S. at p. 318, emphasis added.)[7] Similarly, in Jurek v. Texas, supra, a plurality of the Court held that a capital sentencing scheme must allow a sentencer to consider in mitigation “relevant facets of the character and record of the individual offender [and] the circumstances of the particular offense . . . .” (428 U.S. at p. 304.)
Thus, Penry and Jurek say nothing about relying on such a factor to impose a death penalty. Indeed, Penry itself noted that there was a clear distinction in standards applied to mitigating factors as opposed to aggravating factors:
“In contrast to the carefully defined standards that must narrow a sentencer’s discretion to impose the death sentence, the Constitution limits a state’s ability to narrow a sentencer’s discretion to consider relevant evidence that might cause it to decline to impose the death sentence.” (Penry v. Lynaugh, supra, 492 U.S. at p. 327, emphasis in original.)
Second, neither case involved a claim that a statutory aggravating factor was vague. Thus, the relevance of these cases to the Godfrey and Maynard line of cases “is slight at best.” (Stringer v. Black, supra, 112 S.Ct. at p. 1139.) For the same reason, Booth v. Maryland, supra, does not support the proposition on which this Court relied. Booth addresses the type of evidence that may be considered relevant to the sentencing decision. It did not address the entirely separate question as to what standard must be applied to that evidence to properly guide the jury, nor did it purport to overrule Maynard v. Cartwright, supra.
Third, even if Penry and Jurek are somehow read to embrace approval of a “circumstances of the crime” aggravating factor, the fact remains that the Texas scheme under which they arose does not require the sentencer to weigh aggravating and mitigating factors in selecting the appropriate punishment. Mr. B concedes that in states where aggravating factors do not play any formal role in the decision to impose death, the jury could properly rely on the “circumstances of the crime,” to impose a death sentence. (See Zant v. Stephens, supra, 462 U.S. 862.) In California, however, unlike Texas, aggravating factors play a critical role in the weighing process which leads to the ultimate sentence. Neither Penry, Jurek nor Booth support the validity of section 190.3, subdivision (a).
Nor do the observations this Court made in Tuilaepa save section 190.3, subdivision (a). It is quite true that the circumstances of the crime are “relevant to the sentencing decision.” (People v. Tuilaepa, supra, 92 Daily Journal D.A.R. at p. 17477.) As Maynard v. Cartwright, supra, 486 U.S. 356, recognizes, however, they are relevant and may be considered only in conjunction “with some narrowing principle to apply to those [circumstances].” (486 U.S. at p. 363.)
Similarly, the fact that in a particular case the “circumstances of the crime” may be “specific, provable and commonly understandable facts” does not cure the vagueness problem of section 190.3, subdivision (a). Without some type of “narrowing principle” to apply to these facts, it is impossible to “minimiz[e] the risk of wholly arbitrary and capricious action.” (Maynard v. Cartwright, supra, 486 U.S. at p. 362.) Without a narrowing principle to apply to these facts, it is equally impossible to “make rationally reviewable the process for imposing a sentence of death.” (Lewis v. Jeffers, supra, 497 U.S. 764, 110 S.Ct. 3092, 3099.)
In the final analysis, if a sentencer may not impose a death sentence by looking at the circumstances of the crime to determine if it was “heinous, atrocious and cruel” or “outrageously or wantonly vile, horrible or inhuman,” it defies comprehension to say that a sentencer may impose a death sentence merely by looking at the circumstances of the crime themselves. Maynard v. Cartwright, supra, explicitly rejects this precise notion. Proctor, Noguera, and Tuilaepa are wrong and must be overruled.
B. Section 190.3, Subdivision (b), Which Allows The Jury To Weigh As An Aggravating Factor The “Presence or Absence Of Criminal Activity By The Defendant Which Involved The Use or Attempted Use of Force Or Violence” Violates The Eighth Amendment Because, Absent Instructions Defining Elements Of The Prior Crimes, It Allows Arbitrary And Capricious Sentencing.
Penal Code section 190.3, subdivision (b) allows the jury to consider as an aggravating factor “[t]he presence or absence of criminal activity by the defendant which involved the use or attempted use of force or violence or the express or implied threat to use force or violence.” In his opening brief, Mr. B contended that absent instructions on the elements of prior criminal activity, factor (b) is unconstitutionally vague. (Appellant’s Opening Brief (“AOB”) at 198-206.)
In its original opinion in this case, this Court refused to reach the merits of that issue, concluding that the Eighth Amendment’s vagueness requirements do not apply to California’s aggravating factors because they do not determine whether a defendant is eligible for the death penalty. (1 Cal.4th at p. 148.) As discussed above, however, Stringer demonstrates that this conclusion was incorrect. Thus, this Court must now reach the merits of Mr. B’s claim.
The arguments Mr. B made in his opening brief on this issue need not be repeated in detail here. In essence, the argument is that without instructions on the elements of such crimes, and clear definitions of “force” and “violence,” the jury has no principled way to determine whether the defendant’s conduct is “criminal” or whether it involved “force” or “violence.” Opinions on whether particular conduct is violent or criminal, and thus whether this factor is established, will vary from juror to juror, resulting in a risk of arbitrary sentencing. (AOB at 202.)
This Court recently rejected a similar claim in People v. Tuilaepa, supra, 92 Daily Journal D.A.R. at p. 17477. In Tuilaepa, this Court concluded that factor (b) is not unconstitutionally vague because, like factors (a) (circumstances of the crime) and (i) (the defendant’s age), it
“directs the sentencer’s attention to specific provable, and commonly understandable facts about the defendant and the capital crime that might bear on his moral culpability. Having met these standards of relevance and specificity, factors (a), (b), and (i) are not ‘illusory’ or otherwise impermissibly ‘vague’ (Stringer v. Black, supra, 503 U.S. __, __ [117 L.Ed.2d 367, 382]) simply because they leave the sentencer free to evaluate the evidence in accordance with his or her own subjective values.” (92 Daily Journal D.A.R. at p. 17477.)
As demonstrated above, this Court’s reasoning in Tuilaepa is incorrect. (See Argument II-A, supra, at p. 15-25.) It is not enough that an aggravating factor direct the jury’s attention to specific, constitutionally relevant evidence. Aggravating factors must set clear enough standards so that they can be applied in a consistent, nonarbitrary manner. An aggravating factor is unconstitutionally vague precisely because it does allow the jury to “evaluate the evidence in accordance with his or her own subjective values.” Absent instructions defining the elements of prior criminal activity and the meanings of “force” and “violence”, reliance on section 190.3, subdivision (b) as a basis for imposing the death sentence is unconstitutional.
C. Instructing the Jury In The Terms Of A Unitary List Of Aggravating And Mitigating Factors, Without Instruction As To Which Factors Are Aggravating And Which Are Mitigating, Or As To The Meaning Of Aggravation, Violates The Eighth Amendment.
In California, the list of factors the jury is instructed to consider does not specify which are aggravating and which are mitigating. Nor is the jury given any definition or explanation of aggravation which might serve as a narrowing principle in the application of the factors. As more fully discussed below, the failure to identify which factors are aggravating and which are mitigating results in arbitrary and inconsistent sentencing, in violation of the Eighth Amendment, in three separate respects.
First, it allows the jury to consider as aggravating certain factors that are intended, according to this Court’s interpretation of the statute, to serve only as mitigating factors. Thus, in effect, proper mitigating factors may be converted into unconstitutional aggravating factors.
Second, the use of a unitary list allows the jury to consider the absence of statutory mitigating factors as aggravating factors. As such, these factors do not provide the kind of guidance the constitution requires to avoid arbitrary and capricious application of the death penalty.
Third, section 190.3, subdivision (i), the age of the defendant, has been interpreted by this Court to encompass any age-related fact that the jury might view as either aggravating or mitigating. (People v. Lucky (1988) 45 Cal.3d 259, 302.) Indeed, this Court has gone further and held that the “prosecution may argue age as an aggravating factor, and the defense may argue it as mitigating. It is up to the jury to decide.” (People v. Edwards (1991) 54 Cal.3d 787, 844.) As an aggravating factor, the “age” of the defendant provides no principled guidance to the jury and therefore fails to meet constitutional standards.
1. The possibility that the jury will treat statutory mitigating factors as aggravating factors creates the risk of arbitrary sentencing in violation of the Eighth Amendment.
This Court has held that certain of the factors listed in Penal Code section 190.3 are intended to be mitigating factors only. These include subsection (d), “whether or not the offense was committed while the defendant was under the influence of extreme mental or emotional disturbance,” and subsection (h), “whether or not at the time of the offense the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease or defect or the effects of intoxication.” (People v. Davenport (1985) 41 Cal.3d 247, 288; People v. Melton (1988) 44 Cal.3d 713, 770; People v. Lucero (1988) 44 Cal.3d 1006, 1031 n.15.)
Because the jury is never informed that subsections (d) or (h) are mitigating factors, it is free to interpret them as aggravating factors. While it is quite true that many sentencers could properly view evidence of mental disturbance or mental defect as mitigating, others may view it as aggravating. As the Supreme Court recognized in Penry v. Lynaugh, supra, 109 S.Ct. at p. 2949, evidence of a defendant’s mental problems (in that case, mental retardation and a history of abuse) “is thus a two‑edged sword: it may diminish his blameworthiness for his crime even as it indicates that there is a probability that he will be dangerous in the future.”
Similarly, in today’s climate of strong disapproval of drug and alcohol abuse, and the widespread recognition of the social costs of such abuse, some sentencers may conclude that a defendant who was voluntarily under the influence of drugs or alcohol at the time of the crime is more, rather than less, deserving of death. Others may consider this as a mitigating factor. Once again, because the jury is not told that this may only be considered as a mitigating factor, identically situated defendants will be sentenced differently.
In the same way, subsection (g) ‑‑ which provides that the jury may consider whether the defendant acted under the substantial domination of another person ‑‑ may also be considered in aggravation or mitigation. As with mental retardation in Penry, to the extent a defendant is susceptible to being dominated by others, some sentencers could believe that a death penalty was more appropriate in order to prevent future domination and violence. On the other hand, other sentencers could reasonably believe that such evidence lessened the defendant’s culpability.
Because the instructions given to jurors in California capital cases allow them to decide whether the listed factors are aggravating or mitigating without guidance, identically situated defendants will be sentenced differently based solely on whether particular jurors view the same factors as mitigating or aggravating. This is the precise type of arbitrary and capricious imposition of the death sentence that the Eighth Amendment prohibits.
Completely apart from the risk of arbitrary sentencing caused by the failure to advise the jury which factors are mitigating and which are aggravating, there are two additional Eighth Amendment problems with respect to the actual text of factors (d), (g) and (h).
The first problem is that if factors (d) or (g) are used as aggravating factors, they must meet constitutional vagueness standards. The text of these factors ‑‑ allowing the jury to impose death based on the presence of “extreme mental disturbance” or “substantial domination of another person” — requires the jury to make an inherently subjective determination regarding the degree of disturbance or domination. Aggravating factors that include terms like “extreme” and “substantial” do not provide sufficient guidance to avoid arbitrary and capricious sentencing. (See, e.g., State v. David (La. 1985) 468 So.2d 1126, 1129‑1130 [holding vague an aggravating factor which allowed the jury to impose death based upon a “significant” history of criminal conduct]; Arnold v. State (Ga. 1976) 224 S.E.2d 386, 391‑392 [holding vague an aggravating factor which allowed the jury to impose death based upon a “substantial” history of assaultive convictions].)[8]
The second problem with allowing statutory mitigating factors to be used as aggravating factors is that these factors do not provide a principled basis for identifying those defendants who deserve to die. Evidence of mental disturbance, substantial domination by another person, mental defect, or intoxication simply does not make a defendant more deserving of death. To the contrary, it is the “belief, long held by this society, that defendants who commit criminal acts that are attributable to . . . emotional and mental problems, may be less culpable than defendants who have no such excuse.” (California v. Brown (1987) 479 U.S. 538, 545 [conc. opn. of O’Connor, J.].)
A defendant who was mentally impaired, or who was under the influence of drugs or alcohol at the time of the crime, is not more deserving of death than one who was not. Indeed, as noted above, this Court itself has held that each of these factors were intended to serve as mitigating factors only. (People v. Visciotti, supra, 2 Cal.4th at p. 74; People v. Davenport, supra, 41 Cal.3d at p. 288; People v. Melton, supra, 44 Cal.3d at p. 770; People v. Lucero, supra, 44 Cal.3d at p. 1031 n.15.) Allowing a sentencer to impose a death sentence by relying on factors which make a defendant less culpable represents a truly arbitrary imposition of the death sentence.
In sum, the failure to identify which factors are aggravating and which are mitigating creates the risk of arbitrary and capricious imposition of the death sentence. Similarly situated defendants are likely to receive different sentences based on the personal preferences and opinions of their jurors. Reading the jury a unitary list without instruction as to which factors may be considered aggravating and without any guiding principle to assist the jury in determining how to apply the factors thus “creates the risk that the jury will treat the defendant as more deserving of the death penalty than he might otherwise be by relying upon the existence of an illusory circumstance.” (Stringer v. Black, supra, 112 S.Ct. at p. 1139.)
2. Instructions which leave jurors free to consider the absence of statutory mitigating factors as aggravating factors creates the risk of arbitrary sentencing in violation of the Eighth Amendment.
In addition to creating the risk that jurors may treat the existence of mitigating factors as aggravating, the unitary list also creates the risk that jurors may treat the absence of mitigating factors as aggravating factors. The language used in section 190.3, subdivisions (d), (g), and (h), which asks the jury to consider “whether or not” certain mitigating circumstances exist, is especially susceptible to that interpretation. Absent instructions to the contrary, and under the plain terms of the instruction, a juror may rely on the absence of mental impairment, duress, or impaired capacity as an aggravating factor.
So interpreted, these “aggravating factors” also fail to provide any meaningful guidance for the jury. This Court has already acknowledged that the absence of a mitigating factor is not a meaningful aggravating factor, because “the absence of mitigation would not automatically render the crime more offensive than any other murder of the same general character.” (People v. Davenport, supra, 41 Cal.3d at p. 289.) In addition, the risk of inconsistent and capricious sentencing is increased because, while one jury may view the absence of these factors as aggravating, another may view their absence as neither aggravating nor mitigating.
3. The reliance on age as an aggravating factor, as it is broadly defined by this Court, creates the risk of arbitrary sentencing in violation of the Eighth Amendment.
Section 190.3, subdivision (i), which allows the jury to consider the age of the defendant, is a clear example of the type of vagueness created by the unitary list. This Court has interpreted this factor to be “a metonym for any age‑related matter suggested by the evidence or by common experience or morality that might reasonably inform the choice of penalty.” (People v. Lucky, supra, 45 Cal.3d at p. 302, emphasis added.)
The jury is not given this explanatory instruction. It is merely told that it can consider the defendant’s age. Even if it were so instructed, this Court’s interpretation of subsection (i) broadens rather that narrows its scope and leaves the jury with no meaningful guidance as to how to interpret and apply this aggravating factor. Age can mean almost anything, and it can mitigate or aggravate in the same case, depending on the juror’s own personal perspective. (People v. Edwards, supra, 54 Cal.3d at p. 844.) For example, while many jurors would view a defendant’s relative youth as mitigating, others might consider that the time and expense of keeping a young person in jail for life was a factor that legitimately weighed in favor of a death sentence.
This Court recently rejected a similar challenge to factor (i) in People v. Noguera, supra. The Court referred to its explanation of the age factor in People v. Lucky, supra, and concluded that factor (i) was not impermissibly vague because it directed the jury to “specific, provable and commonly understandable facts about the defendant and the capital crime that might bear on his moral culpability.” (92 Daily Journal D.A.R. at p. 17497.)
This Court should reconsider the conclusion it reached in Noguera. It is true that the defendant’s age is ordinarily a specific, provable fact, but that does not mean this aggravating factor is not vague in the Eighth Amendment sense. Neither the instruction given to the jury, nor this Court’s interpretation of the age factor, provide any guidance as to how and why any particular age is a factor that should be weighed in favor of death. As to the “age‑related matters” that this Court has deemed to be included in subsection (i), the jury is given no guidance as to what specific facts, besides chronological age, may be considered to establish this aggravating factor.
Even if jurors were able to identify what “age‑related matters” they are to consider under the “age” factor, they are given no guidance as to how to determine which of these matters are aggravating and which are mitigating. Like subsection (a), circumstances of the crime, subsection (i) directs the jury to consider certain facts without providing a guiding principle to help the jury decide which of these facts are aggravating and which are mitigating.
III. EVEN IF THIS COURT WERE TO ENGAGE IN HARMLESS ERROR ANALYSIS, REVERSAL IS REQUIRED IN THIS CASE BECAUSE THE STATE WILL BE UNABLE TO SHOW THAT THE PRESENCE OF THREE UNCONSTITUTIONAL AGGRAVATING FACTORS WAS HARMLESS BEYOND A REASONABLE DOUBT.
When a state uses aggravating circumstances to distill death‑eligible murders from all first degree murders, but where the aggravating factors play no role whatever in the jury’s selection of the appropriate penalty, reliance on an unconstitutional aggravating factor does not require a remand where at least one valid aggravating circumstance remains. (Zant v. Stephens, supra, 462 U.S. at p. 873‑874.) When a capital punishment scheme uses aggravating circumstances to guide the sentencer’s discretion in deciding what penalty to impose, as where the sentencer is required to weigh mitigating and aggravating factors, reliance on an unconstitutional aggravating circumstance requires a remand. (Cartwright v. Maynard, supra, 822 F.2d at p. 1480, 1482‑1483 (10th Cir. 1987), aff’d, 486 U.S 356 (1988).)
Alternatively, the appellate court may disregard the invalid aggravating factor and apply harmless error analysis. (Sochor v. Florida, supra, 112 S.Ct. at p. 2122‑2123; Clemens v. Mississippi, supra, 110 S.Ct at p. 1450-1455.) If the Court chooses to apply harmless error analysis,[9] the invalidity of aggravating factors (a), circumstances of the crime, and (b), prior violent criminal activity, and of the instruction in terms of a unitary list of aggravating and mitigating factors, require reversal of Mr. B’s death sentence.
The only valid aggravating factors on which the prosecution’s penalty phase case was based were (1) the two special circumstances found true at the guilt phase, multiple murder and murder during a robbery (RT 3558‑3560), and (2) Mr. B’s prior felony convictions for sale of a controlled substance and attempted criminal possession of a firearm when he was 16 years old. (RT 3715) The jury very likely based its verdict on the numerous invalid aggravating factors on which the prosecution presented evidence and argument.
Based on evidence presented at both the guilt and penalty phases, the prosecutor identified four separate sets of facts that she argued the jury could weigh as aggravating factors under subsection (a), circumstances of the crime. She identified as separate aggravating factors that (1) the killing was planned and not necessary (RT 3983); (2) defendant blamed an innocent person (RT 3984); (3) defendant knew the victim and knew that he had children in Peru (RT 3984); and (4) the victim had befriended the defendant. (RT 3985). In the prosecution’s view the circumstances of the crime were enough, “even considered alone” to support a death verdict. (RT 3986.)
Moreover, because the jury was instructed in terms of a unitary list of aggravating and mitigating factors, it is extremely likely that the jury improperly relied on additional invalid aggravating factors. The prosecutor explicitly urged the jurors to view the absence of extreme emotional disturbance and the absence of duress or substantial domination of another person as aggravating factors. (RT 3988‑3990.) The trial court sanctioned this argument by overruling defense counsel’s objection in the presence of the jury. (RT 3990.)
The valid aggravating factors in this case are certainly not overwhelming in comparison to the mitigating factors ‑‑ the defendant’s youth, his unstable childhood, the loss of his father and brother, and his incarceration at the age of 16. (See Argument IV-A, infra, at p. 46.) Given the nature of the invalid aggravating factors the jury was allowed to consider, and the prosecutor’s heavy reliance on the invalid factors in her argument, this Court will be unable to conclude that the error in this case was harmless.[10]
IV. THE INFECTION OF THE WEIGHING PROCESS WITH NUMEROUS INVALID AGGRAVATING FACTORS CANNOT BE CURED BY APPELLATE REWEIGHING OF AGGRAVATING AND MITIGATING FACTORS.
The Supreme Court has recently held that in a “weighing state” in which the sentencer has set forth in writing those aggravating circumstances upon which it relied in imposing death, a state appellate court may avoid the need for a remand or harmless error analysis, and uphold a death sentence based on an unconstitutional aggravating factor, by disregarding the invalid aggravating factor and engaging in “careful appellate weighing of aggravating against mitigating circumstances.” (Clemons v. Mississippi, supra, 110 S.Ct. at p. 1446‑1449. Accord Richmond v. Lewis (1992) 92 Daily Journal D.A.R. 16062, 16064‑16066.)
In California, however, only a remand for resentencing or constitutional harmless error analysis are options. First, because California law does not require jury findings as to which aggravating factors the jury relied upon in sentencing Mr. B to death, it would violate the Eighth Amendment for this Court to itself reweigh aggravation and impose a death sentence. Second, because this Court has long held that in capital cases the jury has the “sole responsibility” for imposing sentence, it would violate Due Process for this Court to itself reweigh aggravation and impose a death sentence.
A. In The Absence Of Jury Findings As To Which Aggravating Factors The Jury Relied Upon In Sentencing Mr. B To Death, it would Violate The Eighth Amendment For This Court To Itself Reweigh Aggravation And Impose A Death Sentence.
Significantly, in each of the three states where the Court has permitted an appellate court to cure the sentencer’s reliance on an unconstitutional aggravating factor in the weighing process by itself reweighing the factors, the actual sentencer was required to set forth in writing the precise aggravating factors it had relied upon. (Miss. Code Ann. section 99‑19‑101(3) [providing that if the sentencer imposes a death sentence, it must provide “specific written findings of fact based upon the [aggravating] circumstances in subsection (5) . . . of this section . . . .”]; Fla. Stat. section 921.141(3)[same]; Ariz. Rev. Stat. Ann. 13-703(D)[same].) Given this requirement, it is entirely feasible for an appellate court to “reweigh” the remaining aggravation. For example, if a jury relied on and set forth seven aggravating factors in sentencing a defendant to death, and one of these factors was later declared invalid, it would be entirely feasible for an appellate court to reweigh the remaining six aggravating factors which had been found, and find that the inclusion of one unconstitutional aggravating factor did not require a new sentencing hearing.
In the absence of a requirement that the actual sentencer set forth in writing the precise aggravating factors it had relied upon, it would violate the Eighth Amendment for a state appellate court to speculate as to what aggravating factors were found and engage in reweighing these factors. This is because the Eighth Amendment recognizes the “need for treating each defendant in a capital case with that degree of respect due the uniqueness of the individual.” (Lockett v. Ohio (1978) 438 U.S. 536, 605.) Thus, the procedures by which a defendant is sentenced to death must assure an individualized determination that the punishment is precisely “tailored to [the defendant’s] personal responsibility and moral guilt.” (Enmund v. Florida (1982) 458 U.S. 782, 801.)
Where there have been no findings explaining the aggravating factors upon which the jury has relied, the institutional limitations of appellate courts renders them unable to achieve the goal of individualized treatment through reweighing. As the Supreme Court itself has noted:
“[A]n appellate court, unlike a capital sentencing jury, is wholly ill‑suited to evaluate the appropriateness of death in the first instance. Whatever intangibles a jury might consider in its sentencing determination, few can be gleaned from an appellate record. This inability to confront and examine the individuality of the defendant would be particularly devastating to any argument for consideration of what this Court has termed ‘[those] compassionate or mitigating factors stemming from the diverse frailties of humankind.’ When we held that a defendant had a constitutional right to the consideration of such factors . . . we clearly envisioned that the consideration would occur among sentencers who were present to hear the evidence and arguments and see the witnesses.” (Caldwell v. Mississippi (1985) 472 U.S. 320, 330‑331, citations omitted.)
In this case, the jury did not set forth any of the aggravating factors it had relied upon in sentencing Mr. B to death. On this record, it is impossible for this Court to reweigh without speculating as to which factors were relied upon and which were not.
This is especially true in light of the significant mitigating evidence presented in this case. Without repeating in detail the mitigating evidence presented in this case, the record showed that Mr. B was only 22 years old at the time of the crime, a significant mitigating factor. His previous offenses were committed when he was a teenager. His youth was marred by cultural, emotional, familial, linguistic and educational instability. (RT 3807‑3845.) Eight-year-old Miguel was forced to flee Peru with his mother because of his alcoholic and abusive father. At eleven, his impoverished mother brought him to New York after a business partner robbed her of all her assets. (RT 3810-3817.) His mother left him alone most of the time while she worked as a domestic servant. (RT 3818‑3820.) She sent him to stay with his sister in Spain at the age of 14, but his sister deserted him and he was dispatched to an orphanage. (RT 3820, 3826‑3827.) He was incarcerated in an adult prison at the age of 16. (RT 3834.)
Under these circumstances, it would be rank speculation for this Court to engage in appellate reweighing of the aggravating factors which may remain in the case against the mitigation. The errors in relying on unconstitutional aggravating factors may not be cured by appellate reweighing.
B. Because This Court Has Long Held That In Capital Cases, The Jury Has The Sole Responsibility For Selecting The Penalty To Be Imposed, It Would Violate Due Process For This Court To Itself Reweigh Aggravation And Impose A Death Sentence.
There is a separate and independent reason why this Court may not cure the sentencer’s reliance on an unconstitutional aggravating factor by appellate reweighing. It is now clear that capital sentencing proceedings must satisfy the dictates of the Due Process Clause. (Gardner v. Florida (1977) 430 U.S. 349, 358.) It is also established that where state law requires a jury to make particular findings, the Due Process Clause precludes a state from substituting appellate findings. (Hicks v. Oklahoma (1980) 447 U.S. 343, 346.)
In Hicks, the Supreme Court held that where state law gave defendant the right to a jury determination of particular facts, the due process clause precluded a state appellate court from making those findings. There, Oklahoma law provided that only a jury could impose sentence. The jury imposed a 40 year sentence based on an invalid statute. On appeal, the state appellate court affirmed the sentence because it fell within the range of sentences the jury could have imposed even without the invalid statute. The United States Supreme Court held that because Oklahoma law gave defendant the right to a jury determination of sentence, the appellate court’s imposition of sentence violated due process. (447 U.S. at p. 346.)
Under Hicks, it would violate Due Process for this Court to reweigh and impose a death sentence. California law has long provided capital defendants with the right to a jury determination of the appropriate penalty. (Penal Code section 190.3.) Equally important, however, is that this Court has “consistently and repeatedly taken the view that [in capital cases] ‘[t]he trier of fact has sole responsibility and absolute discretion to select the penalty . . . . This Court cannot substitute its judgment as to the choice of punishment . . . . (People v. Howk (1961) 56 Cal.2d 687, 700. Accord In re Anderson (1968) 69 Cal.2d 613, 623; People v. Mitchell (1966) 63 Cal.2d 805, 821; People v. Rittger (1960) 54 Cal.2d 720, 734; People v. Linden (1959) 52 Cal.2d 1, 26.) “[T]he trier of fact is vested with exclusive discretion to determine punishment.” (People v. Green (1956) 47 Cal.2d 209, 235.)
In making this argument, Mr. B recognizes that in Clemons v. Mississippi, supra, the United States Supreme Court rejected the argument that the Due Process Clause could preclude an appellate court from engaging in appellate reweighing. (Clemons v. Mississippi, supra, 110 S.Ct. at p. 1447‑1448.) The Court was clear to note that Mississippi law created no entitlement to have a jury determine punishment rather than an appellate court. (Id. at p. 1448.) On remand, however, the Mississippi Supreme Court disagreed with this interpretation of its law. (Clemons v. State, supra, 593 So.2d at p. 1005.) By statute, only the jury could impose a death sentence. (Id. at p. 1005.) Therefore, the Mississippi court concluded that, absent specific statutory authorization, it could not engage in appellate reweighing of aggravating and mitigating factors. (Id. at p. 1006.)
Like Mississippi, California law has long made clear that in capital cases “the trier of fact has sole responsibility and absolute discretion to select the penalty . . . . (See, e.g., People v. Howk, supra, 56 Cal.2d at p. 700.) Given that in California it is the jury which has the “sole responsibility” for selecting the appropriate penalty in a capital case, it would violate Due Process for this Court to itself reweigh aggravation and impose a death sentence.
V. MR. B INCORPORATES BY REFERENCE ALL ARGUMENTS MADE IN HIS OPENING, REPLY AND SUPPLEMENTAL BRIEFS.
On October 5, 1992, the United States Supreme Court vacated this Court’s December 9, 1992 decision and remanded this case for reconsideration in light of Stringer v. Black, supra. Mr. B has no desire to repeat the many other arguments contained in his opening, reply, and supplemental briefs which this Court rejected in its original opinion on December 9, 1991.
Nevertheless, because this Court’s original decision has been formally vacated, and in order to preserve these other issues for further review, Mr. B hereby incorporates each and every argument made in his opening, reply, and supplemental briefs.
CONCLUSION
For the reasons set forth in his original opening, reply, and supplemental briefs, Mr. B requests that his conviction be reversed. Alternatively, for the reasons set forth in those briefs, and the reasons set forth in this brief as well, the sentence of death should be reversed. Finally, as argued in the original briefing, a remand is required for a new section 190.4, subdivision (e) hearing.
DATED: ________________.
Respectfully submitted,
By: _____________________
Cliff Gardner
Attorney for Appellant
By: _____________________
Melissa Johnson
Attorney for Appellant
APPENDIX A
[1] The crimes which can carry the death penalty in Mississippi are limited to murder (1) of a police officer, (2) by a person under sentence of life imprisonment, (3) by the use of a bomb or explosive device, (4) for hire, (5) in the course of several enumerated felonies, (6) during the felonious abuse of a child and (7) of an elected official.
[2] Under Mississippi law, even where the jury decides that mitigation does not outweigh aggravation, it does not have to impose a death sentence. (Miss. Code Ann. section 99-19-101(d).) As the Mississippi Attorney General has himself described the Mississippi scheme:
“After the weighing process takes place, the jury does not automatically sentence the defendant to death. There is another step in the process. At this point the jury must determine whether or not the death penalty should be imposed independent of the weighing process. Even if the jury finds that the aggravating circumstances outweigh the mitigating factors it is not required to sentence a defendant to death. The jury must make an independent determination that the defendant should be sentenced to death.” (Stringer v. Black, No. 90-6616, Brief of Respondent at p. 30, citations omitted.)
For the Court’s convenience, a copy of this section of respondent’s brief in Stringer has been attached to this brief as Appendix A.
[3] Similarly, a long line of Supreme Court cases has addressed the constitutionality of aggravating factors which serve dual roles, performing the constitutionally required narrowing function as well as playing a formal role in the sentencer’s decision to impose death. Every one of these cases has held that the vagueness limitations of the Eighth Amendment apply to aggravating factors used in the weighing process even where other aggravating factors remained to properly serve the constitutionally required narrowing function and make the defendant death eligible. (See, e.g. Maynard v. Cartwright, supra, 486 U.S. 356 [applying Eighth Amendment vagueness limitation to find an aggravating factor vague where other aggravating factors remained to make the defendant death eligible]; Richmond v. Lewis (1992) ___ U.S. ___, 92 Daily Journal D.A.R. 16062, 16064-16066; Espinoza v. Florida (1992) ___ U.S. ___, 112 S.Ct. 2926 [same]; Sochor v. Florida (1992) ___ U.S. ___, 112 S.Ct. 2114 [same]; Clemons v. Mississippi (1990) 494 U.S. 738 [same].)
In each of these cases, since other aggravating factors remained to serve the constitutionally required narrowing function and make the defendant death eligible, the only use for the invalid aggravator was in the actual weighing process which resulted in a death sentence. Nevertheless, in every case the Court found unconstitutional the sentencer’s consideration of a vague factor in the decision to impose a death sentence.
[4] Moreover, the United States Supreme Court has held that where the class of death‑eligible defendants has already been narrowed, the fact that state law may further require an aggravating factor to be found before a death sentence can actually be imposed does not mean that it is the aggravating factor which serves the constitutionally required narrowing function. In Lowenfeld v. Phelps, supra, 484 U.S. 231 the Court concluded that “[t]he fact that the sentencing jury is also required to find the existence of an aggravating circumstance in addition is no part of the constitutionally required narrowing process . . . .” (Id. at p. 246.)
[5]Indeed, the “circumstances of the crime” aggravating factor is unconstitutionally vague under the less rigorous standards of the due process clause as well. The due process clause, of course, requires that state statutes give clear notice of the conduct prohibited so that the parties can prepare to meet the charge. (See, e.g., Lanzetta v. New Jersey (1939) 306 U.S. 451, 453.) When a state statute contains terms not “susceptible of objective measurement,” containing no reference to a “specific or definite act,” the Court has declared the statute unconstitutionally vague under the due process clause. (See, e.g. Cramp v. Board of Public Instruction (1961) 368 U.S. 278, 286; Champlin Refinery Co. v. Corporation Commission of Oklahoma (1932) 286 U.S. 210, 243, overruled on other grounds, Phillips Petroleum v. State of Oklahoma (1950) 340 U.S. 190; United States v. L. Cohen Grocery Co. (1921) 255 U.S. 81, 89.)
Here, the phrase “circumstances of the crime” gives the defendant no notice as to what “specific or definite acts” to rebut in order to forestall a death sentence. Indeed, the phrase is so broad, so incapable of definition, that it is impossible to rebut this aggravating factor.
[6]See also Weisburg, Deregulating Death, 1983 Sup. Ct. Rev. 305, 329 (1983) (aggravating factors must “identify special indicia of blameworthiness or dangerousness in the killing.”).
[7]At another point, the Court made clear that the Eighth Amendment requires “that the sentencer ‘not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.'” (492 U.S. at p. 317, emphasis in original.)
[8]Of course, to the extent the jury chooses to rely on factors (d), (g) or (h) in mitigation against a death sentence, there is no constitutional problem. “In contrast to the carefully defined standards that must narrow a sentencer’s discretion to impose the death sentence, the Constitution limits a State’s ability to narrow a sentencer’s discretion to consider relevant evidence that might cause it to decline to impose the death sentence.” (McCleskey v. Kemp, supra, 481 U.S. at p. 304.)
[9]The Supreme Court has made clear that even where harmless error analysis is constitutionally permissible, it is not constitutionally required:
“Nothing in this opinion is intended to convey the impression that state appellate courts are required to or necessarily should engage in harmless error analysis when errors have occurred in a capital sentencing proceeding. Our holding is only that such procedures are constitutionally permissible. In some situations, a state appellate court may conclude that peculiarities in a case make appellate reweighing or harmless error analysis extremely speculative or impossible.” (Clemons v. Mississippi, supra, 110 S.Ct. at p. 1451.)
[10]Under similar circumstances, the Mississippi Supreme Court refused to find that the jury’s consideration of an invalid aggravating factor was harmless error. Upon remand after the United States Supreme Court’s decision in Clemons v. Mississippi, supra, 494 U.S. 738, the Mississippi Supreme Court held:
“[I]t is difficult to accept that beyond a reasonable doubt the jury’s sentencing verdict would have been the same with or without the [invalid] aggravating factor. This factor was argued almost exclusively to the jury as a reason to impose the death penalty.” Clemons v. State (Miss. 1992) 593 So.2d 1004, 1007.
