Brief Bank # B-771 (Re: FORECITE F 8.81.21 n1 [Drive-By Murder Special Circumstance: Constitutional Challenge].)
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ARGUMENT
I
PENAL CODE SECTION 190.2, SUBSECTION (A)(21), ESTABLISHING A
“DRIVE-BY” SPECIAL CIRCUMSTANCE CONFERRING DEATH ELIGIBILITY,
IS UNCONSTITUTIONALLY OVERINCLUSIVE ON ITS FACE AS APPLIED IN
THIS CASE
A. Introduction
This appeal may be the first to address the constitutional validity of Penal Code section 190.2, subsection (a)(21), describing a “drive-by” murder special circumstance. The subsection, adopted by the voters in the 1996 primary election, provides:
(a) The penalty for a defendant who is found guilty of murder in the first degree is death or imprisonment in the state prison for life without the possibility of parole if one or more of the following special circumstances has been found under Section 190.4 to be true:
* * * * *
(21) The murder was intentional and perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person or persons outside the vehicle with the intent to inflict death. For purposes of this paragraph, “motor vehicle” means any vehicle as defined in Section 415 of the Vehicle Code.
Subsection (a)(21) was created by Senate Bill 9 of 1995, which was submitted to the voters for approval as part of Proposition 196 in March, 1996, taking effect on March 27, 1996. Although the trial court expressed concern about the application of this subsection at the time of the charged offense (RT 155), it is clear that the law was in effect on September 6, 1996, when the homicide in this case occurred. There are no reported decisions, at the present time, addressing this relatively new special circumstance.
In this argument, appellant maintains that the scope of subsection (a)(21), hereinafter referred to as “the drive-by special circumstance,” is overinclusive and unconstitutional, under the Due Process Clause of the Fourteenth Amendment and the Eighth Amendment. It violates due process because it reaches conduct that does not rationally relate to the purpose of the statutory provision. It violates the Eighth Amendment because it includes conduct, a spontaneous and unpremeditated murder, that does not warrant death-eligibility. It penalizes a factual characteristic of an offense, being in a vehicle, which is not necessarily related to culpability. Its application results in a more severe punishment for a classic second degree murder than the punishment invariably imposed for premeditated, first-degree murder.
Appellant has not been sentenced to death. Any defendant may challenge a statute imposing a penalty on due process grounds. Because appellant’s sentence has been enhanced by the special circumstance finding, he is also permitted to argue as a matter of statutory construction that the drive-by special circumstance would violate the Eighth Amendment if applied in a death penalty case, since the construction of the special circumstance in his case must be consistent with its construction in a capital case. See People v. Anderson (1987) 43 Cal. 3d 1104, 1139-1146 and Owen v. Superior Court (1979) 88 Cal. App. 3d 757.)
Appellate consideration of appellant’s related challenges to the statute is not foreclosed by the failure of his trial attorney to raise these issues or to object. The applicability of a statute to conceded facts[1] may be raised for the first time on appeal. (In re Neal (1960) 55 Cal. 2d 11, 17; People v. Carr (1974) 43 Cal. App. 3d 441, 444; 6 Witkin & Epstein, California Criminal Law (2d ed. 1989) Appeal, section 3203, p. 3960.) Moreover, in this case, review on appeal is appropriate to “forestall a later claim that trial counsel’s failure to [object] on those additional grounds reflects constitutionally inadequate representation.” (People v. Mattson (1990) 50 Cal. 3d 826, 854.) If appellant’s arguments herein concerning the constitutionality of the drive-by special circumstance are correct, then trial counsel could have had no conceivable tactical purpose in failing to advance the same arguments.
The crucial function of special circumstances under California law is to delimit eligibility for capital punishment –i.e., to furnish the “‘meaningful basis [required by the Eighth Amendment] for distinguishing the few cases in which [the death penalty] is imposed from the many cases in which it is not'” (People v. Anderson (1987) 43 Cal.3d 1104, 1147 quoting Furman v. Georgia (1972) 408 U.S. 238, 313 [33 L.Ed.2d 346, 392 92 S.Ct. 2726] (conc. opn. of White, J.) In arguing that the drive-by special circumstance does not serve this “narrowing” purpose with sufficient precision, or the deterrent and punitive purposes of the provision, appellant begins from dictum found in the concurring opinion of Justice Kline in People v. Bostick (1996) 46 Cal. App. 4th 287, a non-capital case which considered a drive-by enhancement, Penal Code section 12022.55, that was a precursor to the special circumstance at issue here.
Appellant makes both a facial and as-applied challenge. The latter involves a “challenge to the statute’s application to a particular individual or in a particular setting.” (American Academy of Pediatrics v. Lungren (1997) 16 Cal. 4th 307, 340.) The former looks exclusively to the terms of the statute. “A facial challenge to the constitutional validity of a statute or ordinance considers only the text of the measure itself, not its application to the particular circumstances of an individual. (Dillon v. Municipal Court (1971) 4 Cal.3d 860, 865.’ ‘To support a determination of facial unconstitutionality, voiding the statute as a whole, petitioners cannot prevail by suggesting that in some future hypothetical situation constitutional problems may possibly arise as to the particular application of the statute …. Rather, petitioners must demonstrate that the act’s provisions inevitably pose a present total and fatal conflict with applicable constitutional prohibitions.’ ” (Arcadia Unified School Dist. v. State Dept. of Education (1992) 2 Cal.4th 251, 267, quoting Pacific Legal Foundation v. Brown (1981) 29 Cal.3d 168, 180-181.)” (Tobe v. City of Santa Ana (1995) 9 Cal. 4th 1069, 1084.)
Even a facially valid statute may be applied in an unconstitutional manner. Thus, appellant requests that this Court separately consider his facial and “as applied” claims. For purposes of the arguments which follow, application of the special circumstance to appellant is made invalid by the facts that (1) the murder was elevated to a first degree murder under Penal Code section 189 by operation of the same facts which establish the special circumstance, rather than by a finding of premeditation; (2) the altercation herein began while appellant was already in his van, therefore the van was not an deliberately chosen instrumentality of the offense; (3) the shooting was not gang-related; (4) the shooting did not occur under circumstances creating a risk of harm to third parties, and (5) M was also in a vehicle. Additional facts pertaining to the application of the statute are discussed in the arguments which follow.
B. Shooting From a Vehicle Is an Overbroad Basis for Additional Punishment for Intentional Murder
In People v. Bostick, the First District, Division Two considered the elements of a drive-by sentence enhancement under Penal Code section 12022.55. That statute provides:
Notwithstanding Section 12022.5, any person who, with the intent to inflict great bodily injury or death, inflicts great bodily injury, as defined in Section 12022.7, or causes the death of a person, other than an occupant of a motor vehicle, as a result of discharging a firearm from a motor vehicle in the commission of a felony or attempted felony, shall, upon conviction of the felony or attempted felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished by an additional term of imprisonment in the state prison for 5, 6, or 10 years.
The drive-by enhancement was enacted in 1987. Its language is similar to the drive-by special circumstance at issue in this case, as well as the drive-by murder provision of Penal Code section 189, except that the enhancement required that the victim be a non-occupant of a vehicle.[2] In appellant’s case, the enhancement would not apply, because M was in another vehicle. Most significantly, neither provision requires that the vehicle be an instrumentality of the offense, or that there be any nexus between the defendant’s presence in the vehicle and the offense.
The scope of the drive-by special circumstance is greater than the scope of the drive-by enhancement. And, as explained in Bostick, supra, the scope of the drive-by enhancement is itself considerably broader than the evil contemplated by the Legislature, namely gang-related shootings from moving vehicles into crowded areas with pedestrians.
The defendant in Bostick advanced an argument that the Legislature contemplated application of the drive-by enhancement only where there was a shooting from a moving vehicle. The defendant in Bostick has been sitting in his car talking to the victim, a pedestrian standing by the car, for 5 or 10 minutes before shooting out the window. The shooting was not gang-related and was not fairly characterized as a “drive-by.”
The majority opinion in Bostick holds that the legislative intent of Penal Code section 12022.55 is irrelevant to its application to particular facts unless the statute is ambiguous, and the statute is not ambiguous. The fact that the defendant’s conduct fell within its clear terms resolved the issue, even if the conduct was not what the Legislature had intended to prohibit or penalize when it adopted the provision.
Justice Kline, concurring, stated that he wrote separately “because I agree with appellant’s theory of the statute and believe it appropriate to explain why I nevertheless reject his argument.” (Id. At 292, conc. op.) He continued: “As appellant correctly points out, section 12022.55 was designed to increase the punishment for a so-called ‘drive-by’ shooting–that is, the discharge of a weapon from a moving vehicle in an area in which large numbers of people are likely to be present–and this case arguably does not involve such a shooting.” (Id. at 293, conc. op.)
Justice Kline then quoted from the proponents’ arguments in favor of the drive-by special circumstance at issue in this case:
“Murder by drive-by shooting has reached epidemic levels in California. [P] An average of more than one young person under the age of 18 was a victim of a drive-by shooting in Los Angeles alone every week in 1991, according to a recent study in the New England Journal of Medicine; 36 of these youths died. [P] The study found that drive-by shootings are no longer confined to the inner city, but have spread everywhere. Because the shooting is done from a moving vehicle, too often the victim is an unintended target–an innocent child, a high school student with no gang affiliation, a young mother who happens to live in a neighborhood targeted by drive-by shooters, or a harmless passer-by. [P] It’s got to stop.” (Ballot Pamp., Proposed Amends. to Cal. Const. with arguments to voters, Primary Elec. (Mar. 26, 1996), argument in favor of Prop. 196, p. 26, second italics added.)”
(People v. Bostick, supra, 46 Cal. App. 4th 287, 293, conc. op. Of Kline, J.)
His analysis continued:
“Application of section 12022.55 to the discharge of a firearm from a vehicle not then being operated would not defeat or obstruct the legislative purpose because it is not inconsistent with application of the enhancement to conventional drive-by shootings; nor would such application be patently absurd, as a vehicle provides a redoubt that might facilitate the commission of criminal acts even if it is not at that moment being used for transportation. [Fn. Omitted.] Thus, because appellant cannot demonstrate “that the natural and customary import of the statute’s language is either `repugnant to the general purview of the act,’ or for some other compelling reason, should be disregarded, this court must give effect to the statute’s ‘plain meaning.’”
(Id. at 296.)
Finally, in the portion of his opinion directly pertinent to the arguments in the present case, Justice Kline stated:
“Defendant has staked his appeal on questions of statutory construction and not any claim that the statute may be unconstitutional on its face or as applied to him. He does not contend, for instance, that the statute is fatally overinclusive for punishing conduct not within the apparent legislative purpose, or is underinclusive for excluding conduct which may appear materially indistinguishable from included conduct. (See Brown v. Merlo (1973) 8 Cal. 3d 855, 876-877; cf. United States v. McDougherty (9th Cir. 1990) 920 F.2d 569, 572 [federal enhancement for distribution of drugs within 1,000 feet of elementary school]; United States v. Thornton (9th Cir. 1990) 901 F.2d 738, 740 [same].) Overinclusiveness may or may not appear in the statute’s facial applicability to shootings in which the defendant’s presence in a car was mere happenstance. As for underinclusiveness, I confess bewilderment at the statute’s exclusion of shootings in which the victim is “an occupant of a motor vehicle.” (§ 12022.55.) Like the majority, however, I express no opinion on how such challenges might fare should they be properly raised in another case.”
(Id., 46 Cal. App. 4th at 296, fn. 5.)
It bears emphasis that Justice Kline in Bostick was concerned with the “overinclusiveness” of a sentence enhancement provision, the primary purpose of which was to deter and more severely punish “drive-by” felonies committed by discharging a firearm from a motor vehicle. In this case, in contrast, “overin-clusiveness” must be measured against the distinct purposes of the drive-by special circumstance, the primary purpose of which is to “genuinely narrow’ the class of persons eligible for the death penalty” (Zant v. Stephens (1983) 462 U.S. 862, 877 [77 L. Ed. 2d 235, 249, 103 S. Ct. 2733]), or to provide a ‘meaningful basis’ for distinguishing the ‘few’ murder cases in which death is imposed from the ‘many’ in which it is not (see, e.g., Godfrey v. Georgia (1980) 446 U.S. 420, 433 [64 L.Ed. 2d 398, 409, 100 S. Ct. 1759]). The argument in this appeal is concerned with a far more delimited governmental purpose than that at issue in Bostick, and with a penal consequence that necessarily warrants heightened scrutiny of legislative classifications.[3]
Thus, in this case, the issue is not simply whether “defendant’s presence in a car was mere happenstance” as it clearly was. The issue is whether appellant’s presence in the car at the time of the shooting furthers the Eighth Amendment requirement that California “narrow” the application of the death penalty to a subset of all murders that have particular aggravating characteristics. From a substantive due process standpoint, the issue is whether the classification created by the drive-by special circumstance fits the legislative purpose with sufficient precision that the statute does not extend to conduct which has no relationship to culpability. Appellant believes that the drive-by special circumstance fails both the Eighth Amendment and substantive due process tests, both facially and as applied to the facts of this case.
Appellant’s argument is not a novel one. Opponents of Proposition 196 cited arbitrariness in the imposition of capital punishment as a key reason for voting against adoption of the drive-by special circumstance:
>“Any drive-by killing is deplorable and needs to be punished. Today, if a ‘special circumstance’ such as a prior murder conviction is involved, the death penalty applies, otherwise the penalty may be life in prison without possibility of parole. [P] Proponents of Proposition 196 want to distinguish this crime from less heinous murders simply by the location of the defendant when the crime was committed. They want a killer who shoots from a car to be eligible for the death penalty, while the same killer who walks into a restaurant and shoots a child is not. [P] Applying the death penalty in this way would raise grave constitutional questions. According to the United States Supreme Court, there must be a meaningful basis for distinguishing between those who receive the death penalty and those who do not. The entire justification for a death penalty rests on the idea that ‘special circumstances’ justify a special penalty. If this proposal is enacted, it would merely underline the irrationality of the entire death penalty.”
>
(Ballot Pamp., Proposed Amends. to Cal. Const. with arguments to voters, Primary Elec. (Mar. 26, 1996), Rebuttal to Argument in Favor of Prop. 196, p. 27.)
>Despite these concerns, the voters chose to enact the drive-by special circumstance. However, this Court’s “duty to confront and resolve constitutional questions, regardless of their difficulty or magnitude, is at the very core of our judicial responsibility.” (People v. Anderson (1972) 6 Cal. 3d 628, 640.) And, “if a court invalidates a provision of the initiative entirely, elected lawmakers, appreciating the will of the voters, may themselves respond to the court decision and enact a new legislative provision that effectuates the voters’ intent and cures the constitutional defect.” (Kopp v. Fair Political Practices Commission (1995) 11 Cal. 4th 607, 682, conc. and diss. op. of Kennard, J.) It may be that with relatively little revision, a drive-by special circumstance can be crafted which may be applied coextensively to the evil sought to be suppressed. The present version of the drive-by special circumstance is defective, and if this Court so finds, the special circumstance finding in this case must be vacated.
C. The Provision Violates Substantive Due Process Requirements By Conditioning More Severe Punishment Upon Fortuitous Circumstances
Stated simply, substantive due process prevents government from enacting legislation that is “arbitrary” or “discriminatory” or lacks “a reasonable relation to a proper legislative purpose.” See Nebbia v. New York (1934) 291 U.S. 502, 78 L. Ed. 940, 54 S. Ct. 505. “The cardinal principle of substantive due process is that a law which deprives a person of life, liberty, or property must not be the product of arbitrary legislative judgment. [Citations.] Such a law must be reasonably related to the object sought to be attained by its enactment.” (People v. Armbruster (1985) 163 Cal. App. 3d 660, 664.)[4]
When applying the Fifth and Fourteenth Amendment requirements of substantive due process, a court is ordinarily deferential to the Legislature or the voters when considering economic interests (Yoshioka v. Superior Court (1997) 58 Cal. App. 4th 972, ___, fn. 2: (rational basis test applies to measure limiting damages in civil action). But freedom from personal restraint is a fundamental liberty interest. “If a state law infringes upon personal liberty . . . it is constitutional only if it furthers compelling state interests and is narrowly drawn to serve those interests.” (Reno v. Flores (1993) 507 U.S. 292, 123 L. Ed. 2d 1, 113 S. Ct. 1439.) Classifications which result in imposition of the death penalty are the greatest infringement upon personal liberty tolerated by our Constitution, and require the highest degree of reliability in their imposition. (In re Anderson (1968) 69 Cal. 2d 613, 654-655; Beck v. Alabama (1980) 447 U.S. 625, 638; 100 S. Ct. 2382, 65 L. Ed. 2d 392. A heightened standard for measurement of substantive due process should be applied in assessing the extent to which the drive-by special circumstance has been overbroadly written.
As applied to a sentencing scheme, substantive due process prohibits unequal punishment of equally culpable defendants, or the greater punishment of less culpable defendants than the punishment of more culpable defendants. (People v. Kilborn (1995) 41 Cal. App. 4th 1325, 1328.) A sentencing law that is utterly irrational is unconstitutional, and does not afford a basis for punishment. In the case of a substantive due process claim, “deprivation of a right is supportable only if the conduct from which the deprivation flows is prescribed by reasonable legislation that is reasonably applied; that is, the law must have a reasonable and substantial relation to the object sought to be attained.” (In re Marilyn H. (1993) 5 Cal. 4th 295, 306-307; Gray v. Whitmore (1971) 17 Cal. App. 3d 1, 21.) As our Supreme Court stated the principle in another formulation, “In the exercise of its police power a Legislature does not violate due process so long as an enactment is procedurally fair and reasonably related to a proper legislative goal. The wisdom of the legislation is not at issue in analyzing its constitutionality, and neither the availability of less drastic remedial alternatives nor the legislative failure to solve all related ills at once will invalidate a statute.” (Hale v. Morgan (1978) 22 Cal. 3d 388, 398.) The deference of Hale is not as extensive where, as here, a capital sentencing scheme is at issue.
Appellant is not asking this Court to second-guess the wisdom of creating a drive-by special circumstance. The Legislative materials, and common knowledge, amply support a judgment that drive-by murders have become a widespread threat to public safety, and a statutory provision directed at deterring such conduct is fully within the power of the Legislature and the voters to adopt. Appellant’s concern is with the manner in which the language of the provision will inevitably be applied to reach conduct beyond the evil sought to be remedied (the facial challenge) and with the application of the statute to the facts of his case (the as-applied challenge.)
Justice Kline’s concern in Bostick, that there may be cases involving “applicability to shootings in which the defendant’s presence in a car was mere happenstance,” is a starting point for the inquiry. This Court must identify the gravamen of the offense or core of conduct at which the statute was directed. Justice Kline suggested that this was the “discharge of a weapon from a moving vehicle in an area in which large numbers of people are likely to be present.” Justice Kline was construing Penal Code section 12022.55. This Court must construe the drive-by special circumstance.
In doing so, this Court must look to the intent of the voters, rather than the Legislature. The voters were told that “Proposition 196 would allow the death penalty, or life in prison without possibility of parole, for intentional, cold-blooded, first degree murder committed by the discharge of a firearm from a motor vehicle at a person outside the vehicle.” (Ballot Pamp., Proposed Amends. to Cal. Const. with arguments to voters, Primary Elec. (Mar. 26, 1996), argument in favor of Prop. 196, p. 26, italics in original.) The crucial terminology in the foregoing description is “cold-blooded.” The proponents of the measure wanted the voters to believe that the special circumstance would apply to deliberate and premeditated murder, i.e., cases in which the plan to shoot and kill from the car was formed substantially before the shooting.
This argument was deceptive, perhaps not intentionally so, because it neglects to advise the voters of the premeditation-bypassing effect of Penal Code section 189. Penal Code section 189 provides:
>“All murder which is perpetrated by means of a destructive device or explosive, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Section 286, 288, 288a, or 289, or any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree. All other kinds of murders are of the second degree.”
>
(Emphasis supplied). In many cases, including this one, the effect of Penal Code section 189 is to elevate passionate and impulsive slayings to first degree murders. For example, in the ordinary homicide case, a defendant whose homicidal act may have been provoked by the victim is entitled to an instruction, CALJIC 8.73,[5] calling the jury’s attention to the relationship between provocation and premeditation. In this case, provocation was irrelevant to the degree of murder. If the jury found that appellant intended to kill, then the murder was first degree by operation of Penal Code section 189.
The authors of Proposition 196, in their rebuttal to the argument against Proposition 196, expressly stated their assumption that drive-by shootings are not usually crimes of passion. This assumption was carried over from the amendment of Penal Code section 189 to include the drive-by language in 1993. A committee report relative to Senate Bill 9 of 1995 stated, regarding the 1993 amendment to Penal Code section 189:
“In operation, the provision assumes as a matter of law that premeditation or deliberation are present in a drive-by shooting committed with the intent to inflict death, thereby making it easier to obtain a first degree murder conviction . . .”
The assumption that premeditation accompanies many or most drive-by shootings may be a reasonable one. However, the acknowledgment that the provision assumes facts which may not always be true demonstrates the overbreadth of the statute. In this case, for example, the jury was not asked to determine whether the murder was premeditated. Given the evidence of provocation, it is reasonably possible that the jury would have doubted the existence of premeditation. The trial court found the evidence of provocation sufficient to warrant instructions on heat of passion manslaughter, and would surely have instructed pursuant to CALJIC 8.73 had the legal principle been applicable.
Appellant’s less culpable mental state is but one fact making the application of the special circumstance arbitrary and irrational. As in Bostick, appellant’s presence in the car at the time of the shooting was happenstance. This is demonstrated by the fact that appellant was already in his car, in motion, when the sequence of events leading to the shooting started. Clearly, appellant was not driving through the 7-11 parking lot pursuant to a plan to shoot anyone. To fall beyond the sweep of the special circumstance, appellant would have had to take affirmative steps to dissociate himself from his van, in this case risking an assault by a larger aggressor.[6]
Had appellant been on foot when the disagreement with M first occurred, the events in this case would be a classic second-degree murder. Appellant would be no more culpable if he stepped into his van a moment before firing at M than had he been in it all along, or had he never been in it. The vehicle was not an instrumentality of the offense in the same way that vehicles are the means of committing drive-by shootings.
The mere fact that appellant was in his van rather than standing beside it has, in this case, taken appellant directly from a sentence in which he would be parole eligible after 15 years, everything else being equal, to a sentence under which appellant will never be parole eligible. From a substantive due process standpoint, the issue is whether being in a car is a sufficient fact to distinguish these two radically different sentences.
The Legislature, in Penal Code section 189, and the voters, in Penal Code section 190.2, subsection (a)(21), have taken a characteristic of a currently visible pattern of criminal conduct and made it determinative of culpability. For example, if it were shown that an epidemic of gang-related shootings were committed by persons wearing bandannas around their heads, the Legislature might adopt a special circumstance of “wearing a bandanna” at the time of the offense. However, the fact that a particular defendant was wearing a bandanna would not be a rational basis upon which to impose additional punishment.
From the perspective of deterrence, criminalizing the mere fact of being in a car at the time of an offense is irrational when applied to crimes of passion. The provision only deters persons who choose to employ a vehicle in the perpetration of an offense. It has no deterrent effect on persons who are already in a vehicle when the specific intent to commit murder suddenly arises.
The facts of this case are out of step with the legislative vision of drive-by shootings in another crucial respect. As in Bostick, supra, the shooting in this case did not involve a backdrop of innocent bystanders. At the time of the shooting, as described by all witnesses, the only thing in appellant’s field of fire was M, M’s car, and the wall of a building. M was not a pedestrian target, either.
A drive-by special circumstance could be narrowed to apply in a rational manner simply by including a mens rea requirement under which the defendant deliberately chose to employ a vehicle as a means of committing the offense. This is what distinguishes the drive-by slayings to which the legislation is directed from instances such as this. Perhaps the Legislature in drafting the provision used the word “intentionally” to imply that the defendant deliberately choose the vehicle as an instrument of the offense. However, appellant does not believe that such a narrowing construction is likely, because the drive-by special circumstance is not ambiguous. The statutory provision must be held invalid and then replaced with a valid provision through the political process.
D. The Provision Violates the Eighth Amendment By Conditioning Death-Eligibility on a Fact Which Is Not Necessarily Related to Culpability
Separate and apart from its arbitrary operation relative to legislative purposes of deterrence and punishment, the drive-by special circumstance is invalid under the Eighth Amendment because it conditions death eligibility on a fact –being in a car at the time of the offense– which has no necessary connection to culpability. The Eighth Amendment requirement is more stringent than the requirements of substantive due process because a more fundamental liberty interest is at stake. Thus, even if this Court finds sufficient correspondence between ends and means to satisfy due process requirements, it must then go on to consider whether the drive-by special circumstance satisfies the stricter requirements of the Eighth Amendment.
The Eighth Amendment imposes on the State of California “a constitutional responsibility to tailor and apply its [death penalty] law in a manner that avoids the arbitrary and capricious infliction of the death penalty. Part of a State’s responsibility in this regard is to define the crimes for which death may be the sentence in a way that obviates ‘standardless [sentencing] discretion.’ [Citations omitted] It must channel the sentencer’s discretion by ‘clear and objective standards’ [Fn. Omitted] that provide ‘specific and detailed guidance,’ [Fn. Omitted] and that ‘make rationally reviewable the process for imposing a sentence of death.’ [Fn. Omitted.] As was made clear in Gregg, a death penalty ‘system could have standards so vague that they would fail adequately to channel the sentencing decision patterns of juries with the result that a pattern of arbitrary and capricious sentencing like that found unconstitutional in Furman could occur.’ [Citation omitted.]” (Godfrey v. Georgia, supra, 446 U.S. at 428.)
The California Supreme Court has recognized its duty under Godfrey, supra, upholding the lying-in-wait and financial gain special circumstances under Godfrey’s requirements in People v. Edelbacher (1989) 47 Cal. 3d 983, 1023, but invalidating, as vague, a “heinous, atrocious and cruel” special circumstance in People v. Superior Court (Engert) (1987) 31 Cal. 3d 797. See also Carlos v. Superior Court (1984) 35 Cal.3d 131, 153-154 (Eighth Amendment requires proof of accomplice’s intent to kill for robbery-murder special circumstance even if statute contains no such requirement.) The Eighth Amendment “narrowing” requirement should be analyzed in regard to each special circumstance on its own merits. See, for example, People v. Raley (1992) 2 Cal. 4th 870 (torture murder special circumstance.)
Claims have also been made by capital defendants that the proliferation of special circumstances in and of itself has undermined the narrowing function of California law. If the special circumstances effectively apply to all intentional murders, then the entire death penalty process is defective. See, for example, People v. Sanchez (1995) 12 Cal. 4th 1, at 60. Appellant herein adopts this “proliferation” argument as well, but focusses his analysis on the defects within the drive-by special circumstance. The California Supreme Court has indicated that none of the special circumstances it has reviewed to date have been construed in such an overly expansive manner as to create constitutional problems (People v. Crittenden (1994) 9 Cal. 4th 83, at 155.) But the drive-by special circumstance has never been considered by that Court.
The criteria which a state chooses to employ in making a determination of death-eligibility must be rationally related to culpability, or “moral guilt.” (Enmund v. Florida (1982) 458 U.S. 782, 800, 73 L. Ed. 2d 1140, 102 S. Ct. 3368.)[7] A death penalty law avoids the Eighth Amendment’s proscription of arbitrary sentencing procedures if it suitably narrows the class of death-eligible persons, then provides for an individualized penalty determination at the sentencing and appeal stages. (People v. Rodriguez (1986) 42 Cal. 3d 730, 778.) The special circumstance, to perform its constitutional function, must identify a subclass of all murderers who are more culpable than some benchmark.
The California Supreme Court has identified that benchmark as an “ordinary premeditated murder”, in People v. Morales(1989) 48 Cal. 3d 527, 557. Rejecting a claim similar to appellant’s herein, that a special circumstance failed to rationally narrow the class of death eligible persons, the Court held that “an intentional murder, committed under circumstances which include (1) a concealment of purpose, (2) a substantial period of watching and waiting for an opportune time to act, and (3) immediately thereafter, a surprise attack on an unsuspecting victim from a position of advantage, presents a factual matrix sufficiently distinct from “ordinary” premeditated murder to justify treating it as a special circumstance.” (Ibid., emphasis supplied; see also People v. Stanley (1995) 10 Cal. 4th 764, 795.
The problem in this case is that Penal Code section 189 bypasses a determination of premeditation. Appellant could easily have been found guilty of second degree murder had premeditation been necessary for first degree. Thus, in evaluating the drive-by special circumstance, this Court must ask whether the facts required to be proved are sufficient to demonstrate moral guilt in excess of that attributable to an “ordinary premeditated murder.” Apropos of this inquiry, the California Supreme Court has indicated a preference for construing special circumstances in a manner which prevents their overlap with a felony-murder rule (People v. Bigelow (1984) 37 Cal. 3d 731, 751, even though such overlap is not necessarily a constitutional defect (Lowenfield v. Phelps (1988) 484 U.S. 231, 246 [98 L. Ed. 2d 568, 582-583, 108 S. Ct. 546].) In Bigelow, supra, the Court noted that if the financial gain special circumstance were construed to be the same as the robbery-murder basis for first-degree murder liability, there could be a constitutional problem, and “adopt[ed] a limiting construction under which the financial gain special circumstance applies only when the victim’s death is the consideration for, or an essential prerequisite to, the financial gain sought by the defendant.” Appellant in this case is urging a similar narrowing construction so that Penal Code section 189 and the special circumstance do not overlap.
If, as appears, the drive-by special circumstance is coextensive with the drive-by basis for first degree murder liability in Penal Code section 189, and given the legislative recognition that not all drive-by homicides are premeditated, then it is possible for a classical second degree murder to receive the death penalty, simply because the defendant is in a car at the time of the offense. A classic second degree murder, committed from within a car, is less reprehensible than an ordinary premeditated murder. The drive-by special circumstance is thus facially defective because it necessarily includes conduct that does not warrant the death penalty.
But for the operation of Penal Code section 189, the drive-by special circumstance could potentially be justified as an unusually heinous form of premeditated murder, under circumstances where the murder is premeditated and the vehicle was a deliberately chosen instrumentality of the slaying. But in combination with section 189, and as blindly applied in this case, the fact of being in a car is not a constitutional justification for death eligibility. It is an equally fortuitous basis upon which to impose life without possibility of parole.
Whether a special circumstance describes too broad a class of offenders may be an empirical question. See People v. Wader (1993) 5 Cal. 4th 610, at 669. Appellant is unprepared to offer statistical support for a proposition that the drive-by special circumstance would include too many homicides within its scope to meaningfully narrow application of the death penalty. However, there is an alternative way to demonstrate the impropriety of relying on “shooting from a car” as a criterion for death-eligibility.
Enmund v. Florida, supra, 458 U.S. 782, 788-789 holds that the substantive limits imposed upon death penalty laws by the Eighth Amendment are informed by “historical development of the punishment at issue, legislative judgments, international opinion, and the sentencing decisions juries have made before bringing its own judgment to bear on the matter.” The United States Supreme Court reached its conclusion that complicity in felony-murder alone is an unwarranted basis for imposition of the death penalty by performing an extensive review of laws in all 50 states. It found that only eight jurisdictions, a “small minority,” had statutorily authorized death for non-triggermen. (Id. at 792.) This paucity of legislative support formed a partial basis for the Court’s ultimate conclusion that the Eighth Amendment prohibits imposition of the death penalty on non-triggermen who neither intend to kill nor intend that a killing occur.
A similar analysis casts doubt on the viability of California’s drive-by special circumstance, under which merely being in a car at the time of shooting a victim results in death-eligibility. Appellant’s review of sister-state law reveals only one jurisdiction – Alabama – in which shootings from a vehicle specifically qualify a defendant for the death penalty. See Ala. Codes section 13A-5-40(a)(18).[8]
In contrast, the state of Washington has evidently enacted a death penalty provision applicable to defendants who commit drive-by murders for the purpose of retaining or obtaining group membership. See State v. Broadaway (S.Ct. Wash. 1997) 113 Wash. 2d 118 at 123, fn. 1; 942 P.2d 363 (upholding an initiative against a “single subject rule” challenge.) The “purpose” clause of that Washington provision dramatically narrows the scope of the law and would not apply to appellant’s situation. It would operate to further the intent of the California voters to restrict operation of the law to gang members or prospects.
Federal law provides enhanced penalties for drive-by shootings under limited circumstances. For example, 18 U.S.C. Section 36 applies to drive by shooting defendants who, “in furtherance or to escape detection of a major drug offense and with the intent to intimidate, harass, injure, or maim, fires a weapon into a group of 2 or more persons . . .“ It also appears that Congress considered but rejected a proposal to extend the federal death penalty law to certain drive-by shootings. See United States v. Nelson (M.D. Tenn. 1996) 920 F. Supp. 825, at 831.
Oklahoma has a non-capital statutory provision that merits attention. 21 Okla. Statutes section 652(b) provides:
“Every person who uses any vehicle to facilitate the intentional discharge of any kind of firearm, crossbow or other weapon in conscious disregard for the safety of any other person or persons shall upon conviction be punished by imprisonment in the State Penitentiary for a term of not less than two (2) years nor more than twenty (20) years.” This statute is noteworthy because it avoids the problem inherent in the California drive-by special circumstance, which is a potential lack of any connection between the car and the offense. The Oklahoma statute imparts a nexus requirement in which the vehicle must be a deliberate instrumentality of the shooting.
Appellant’s review of law from other jurisdictions thus reveals two things: (1) the smallest minority of other states, one, has a drive-by shooting death penalty provision comparable to the special circumstance at issue here, and (2) several other jurisdictions have more narrowly drafted “drive-by” statutes that limit their scope to the sort of gang-related drive-by shootings that concerned the California voters. Each of these factors weighs against the Eighth Amendment validity of the California drive-by special circumstance.
E. The Error Requires That the Special Circumstance Finding Be Vacated
If this Court accepts the proposition that section 190.2 subdivision (a)(21) is overbroad in violation of either the substantive due process requirements of the Fourteenth Amendment or the Eighth Amendment’s prohibition against the arbitrary imposition of the death penalty, then the special circumstance finding must be vacated, and appellant’s sentence recalculated. There is no basis for a harmless error analysis. This Court cannot, for example, conclude that appellant’s conduct would have been found to violate a more narrowly drawn special circumstance, since appellant cannot be punished for a hypothetical offense that does not presently exist. Moreover, appellant is entitled to a jury determination of each fact necessary to prove guilt. (People v. Sedeno (1974) 10 Cal. 3d 703, 711.) A more narrowly drawn drive-by special circumstance would, of necessity, include additional elements which were not resolved by the jury in this case.
The only California case to find a constitutional defect in a special circumstance, People v. Superior Court (Engert), supra, 31 Cal. 3d 797, involved a pretrial writ rather than an appeal and offers no guidance on whether a prejudice analysis should be applied. Assuming that a constitutional defect in the drive-by special circumstance could be harmless in some hypothetical case, that case would be one conforming to the narrowest view of the voter’s intent, a gang-related shooting in which the vehicle was an instrumentality of the shooting, was moving at the time, and involved the exposure of pedestrians to accidental injury. This is obviously not such a case. Had the trier of fact been asked directly whether the fact that appellant was in a van was essential to the offense, it would have answered in the negative.
The error, if subject to a harmless error analysis, was prejudicial under the facts of this case.
CONCLUSION
For the reasons stated above, the drive-by special circumstance is constitutionally defective and the jury’s finding must be stricken. The matter should then be remanded to the trial court for resentencing.
DATED: December 8, 1997
Respectfully submitted,
__________________________
RALPH H. GOLDSEN
Attorney at Law
Attorney for Appellant
JOHN DOE
(APPELLANT’S REPLY BRIEF)
ARGUMENT
I
PENAL CODE SECTION 190.2, SUBSECTION (A)(21), ESTABLISHING A
“DRIVE-BY” SPECIAL CIRCUMSTANCE CONFERRING DEATH ELIGIBILITY, IS
UNCONSTITUTIONALLY OVERINCLUSIVE ON ITS FACE AND AS APPLIED IN THIS
CASE
A. Appellant Has Standing to Challenge the Statute Under Which He Has Been Sentenced to Life Without Possibility of Parole
Appellant has challenged the constitutionality of Penal Code section 190.2, subsection (a)(21), both on its face and as applied to the facts of his case, and in relation to both the Due Process Clause and the Eighth Amendment. Respondent initially asserts that appellant lacks standing to raise an Eighth Amendment challenge because appellant was not sentenced to death. (RB at p. 16, second paragraph of text.) Respondent is wrong for several reasons.
First of all, the Eighth Amendment applies to all cruel and unusual sentences, not simply capital sentences, as evidenced by People v. Dillon (1983) 34 Cal.3d 441, 478. There may be a difference in the level of scrutiny to which an Eighth Amendment claim is entitled, dependent upon the statutory consequences. However, special circumstances are often construed in the context of a pretrial writ. See, e.g., Carlos v. Superior Court (1983) 35 Cal. 3d 131. It is the same statute, Penal Code section 190.2, that is at issue whether the ultimate sentence is death or LWOPP. Respondent’s argument leads to the anomalous result that a defendant receives a greater degree of scrutiny of constitutional claims if his challenge is brought by pretrial writ than if it is raised on appeal. The form of challenge should not govern the rights of the litigants. The death-eligibility feature of the statute should govern its standard of review in all cases.
Second, the applicable rules of construction, which respondent ignores, are “the rule that penal statutes, and especially felony-murder provisions, should be interpreted in favor of the defendant and the rule that statutes should be construed to avoid serious constitutional questions .” (People v. Anderson (1987) 43 Cal. 3d 1104, 1139.). Respondent relies instead upon Broadrick v. Oklahoma (1973) 413 U.S. 601, 610 [93 S. Ct. 2908, 37 L. Ed. 2d 830], a case involving a statute limiting the political expression of government employees. The primary result of a statutory violation in Broadrick was termination of employment, not execution. There is a vast difference between the consequences of the statutory construction in Broadrick and the construction of section 190.2(a)(21) in this case.
Appellant has searched carefully for any California decision employing Broadrick to limit the scope of review of a special circumstance provision and has found none. Broadrick states a rule of judicial restraint, under which courts are reluctant to reach out for constitutional issues not actually presented by a case. Broadrick is inapplicable to the construction of a statute which, by its express terms, necessarily raises constitutional issues and applies equally to those sentenced to death or to life without possibility of parole.
People v. Manis (1992) 10 Cal. App. 4th 110, also cited by respondent for appellant’s lack of standing, concerned an overbreadth challenge to Penal Code section 368, proscribing elder abuse. The case and the cited page do not mention the concept of “standing.” The case does not support respondent’s position.
Appellant is entitled to a judicial construction of Penal Code section 190.2, subsection (a)(21) that takes into account the consequence that a “true” finding will have in cases besides his own. The only alternative is to have two different judicial versions of one statute, retrospectively dependent upon the sentence which the defendant has received. For obvious reasons, the real world could not operate with competing constructions of a single statute, the effect of which is to govern a penalty already imposed. Respondent’s “lack of standing” contention must be rejected.
B. A Due Process Challenge Does Not Require that A Penal Statute Infringe Upon Protected Conduct Or Fundamental Rights
Appellant contends that subsection (a)(21) violates due process by punishing conduct not within the apparent legislative purpose, or any legitimate legislative purpose. Put another way, the statute reaches beyond the drive-by gang shootings it was designed to deter and would apply to a domestic dispute in which a departing spouse fired from the car in the driveway. And in some instances, including this case, the fact that the shooting is from a car has no rational connection to the offense or the defendant’s culpability. Some people, for example, live in cars. Are they not entitled to defend their habitation? Respondent answers these arguments with a premise that in order to violate due process, an overbroad statute must infringe upon protected conduct, and that appellant has not identified any protected conduct infringed upon.
There are two problems with respondent’s approach. The first is that driving a car is protected conduct, even if not a fundamental right.[9] Cases describing a licensed driver’s due process rights in a license revocation hearing are proof of this. See, e.g., Pollack v. Department of Motor Vehicles (1985) 38 Cal. 3d 367, 380. Subsection (a)(21) penalizes driving a car if someone in the car shoots and kills someone outside the car, even if the driving or being-in-the-car activity is completely unconnected to the shooting. Thus, arguably, the statute at issue does infringe upon protected conduct.
But more importantly, respondent has imported a test of constitutionality designed to apply to civil regulation of conduct, particularly expressive conduct, rather than punishment for criminal conduct. Overbreadth is shown in a penal statute simply by demonstrating that non-culpable conduct is being penalized. The non-culpable conduct need not be specifically protected. A statute is overbroad if it punishes conduct that is not rationally punishable.
For example, a special circumstance which applies to persons who fire a gun and intentionally kill another while wearing sunglasses and a bandanna would present a due process problem. The provision does not punish the shooting and killing, since that conduct is already proscribed by other statutes.[10] The punished conduct is simply “being in a car.” How is “while being in a car” distinguishable from “while wearing sunglasses and a bandanna”?
Appellant’s point throughout his brief is that subsection (a)(21) applies in cases in which the fact of being in a vehicle has nothing to do with the accompanying criminal conduct. As demonstrated in appellant’s opening brief, several states have crafted similar statutes to reach the sort of drive-by shootings that concerned the public in enacting subsection (a)(21). However, those statutes are narrowly drawn to require that the vehicle be a deliberately chosen instrumentality of the offense. The California statute, as noted in People v. Bostick (1996) 46 Cal. App. 4th 287, applies when the shooter’s presence in the car is mere happenstance. Respondent’s brief never addresses this core problem of the statute, perhaps because there is no satisfactory response.
Respondent states that “even assuming the primary impetus of the legislators in presenting the original initiative to the voters who enacted this special circumstance was apparently to curtail gang-related drive-by shootings, it is not therefore unconstitutional if it addresses other serious conduct.” (RB at pp. 18-19.) Respondent fails to recognize the constitutional problem; that the statute punishes non-serious conduct, conduct which the state has no legitimate interest in criminalizing.
Respondent also posits a rational basis for providing more severe penalties for shootings from vehicles: “Moreover, it has been recognized that police officers face a tremendous risk when approaching a person in an automobile. According to one study . . . .” (RB at p. 19, final paragraph.) Appellant does not doubt that the Legislature could more severely punish one who shoots an approaching officer from a car during a traffic stop. However, appellant is claiming that the statute is overinclusive, not that it lacks a rational basis in all instances. If the Legislature wanted to create a special circumstance for persons who shoot police officers approaching their stopped vehicles, appellant would have no objection. Appellant’s objection is to the imprecision of the statute.
C. The Constitutional Challenge Requires That the Court Strictly Scrutinize the Statute To Determine Whether It Is Necessary to Achieve a Compelling Governmental Interest
In his opening brief, appellant argued that a heightened standard of judicial scrutiny applies to substantive due process and Eighth Amendment challenges to a statute determining death-eligibility. (AOB at 31-34.) Respondent answers that substantive due process challenges such as these are governed by a rational basis test. (RB at p. 19.)
The two cases cited by respondent do not concern the rationality of a legislative classification criminalizing particular conduct. Prison Law Office v. Koenig (1986) 186 Cal. App. 3d 560 concerned Penal Code section 3003, requiring that prisoners be paroled to the county of commitment. The court found that the Legislature could rationally choose to distribute parolees in accordance with this criteria. Gray v. Lucas (5th Cir. 1982) 677 F.2d 1086 concerned a claim that a state capital punishment scheme was underinclusive for failing to impose the death penalty on “simple atrocious murder.” In a decision which has no precedential effect in California, a federal appeals court reasoned that a certain Supreme Court decision using the term “clearly wrong” as a standard of review had intended that the rational basis test apply to state legislative classifications regarding death-eligibility. Appellant believes that Gray, supra, was wrongly decided and is inconsistent with later Supreme Court decisions. Respondent’s reliance on an obscure Fifth Circuit decision should raise some suspicion regarding the majority viewpoint on this issue.
The general rule was stated in People v. Olivas (1976) 17 Cal. 3d 236, 251. Legislative classifications which intrude upon a liberty interest or result in loss of life must be strictly scrutinized to determine whether they are reasonably necessary to further a compelling governmental interest. Appellant directs this court’s attention to People v. Stanley (1995) 10 Cal. 4th 764, 794, in which a capital defendant challenged an aspect of the California capital sentencing scheme. The defendant therein relied upon the Olivas rule stated above.
The California Supreme Court sidestepped the issue of the standard of review by finding that defendant was not a member of a suspect class, but went on to review his claim on its merits. It did not repudiate the applicability of Olivas to the issue, nor did it acknowledge that membership in a suspect class is an alternative means of invoking strict scrutiny, not an additional requirement when a liberty interest is at stake.
On its merits, Stanley resembles this case. The defendant therein argued a constitutional violation by the inclusion of non-premeditated murders in the capital sentencing scheme. The court replied:
To prove first degree murder of any kind, the prosecution must first establish a murder within section 187–that is, an unlawful killing with malice aforethought. [Citations omitted] Thereafter, pursuant to section 189, the prosecution must prove the murder was perpetrated by one of the specified statutory means, including lying in wait, or “by any other kind of willful, deliberate, and premeditated killing, . . .” (Italics added.) [Fn. Omitted] Lying in wait is the functional equivalent of proof of premeditation, deliberation, and intent to kill. [Citation omitted]. Consequently, treating the two kinds of murder the same is not a violation of equal protection.”
>
(Id. At 795.) The difference in this case is that while the Legislature and electorate have “assumed” that firing from a vehicle is “ordinarily” premeditated, (see AOB at 40), no court has approved that assumption as a matter of constitutional law, nor should it. This case amply demonstrates that one may discharge a firearm from a motor vehicle in a spontaneous and passionate homicide, without premeditation. That is one aspect of the fatal overbreadth of the statute.
If infliction of the death penalty requires a premeditated murder or its “functional equivalent,” then subsection (a)(21) fails the constitutional test, because it its scope is broader than is necessary to further the governmental interest in executing deserving criminals. As drafted, it clearly reaches non-premeditated homicides for which imposition of the death penalty is unwarranted.
D. Respondent’s Analysis of Appellant’s “As-Applied” Due Process Claim is Flawed
Appellant’s first argument in his opening brief was that the drive-by special circumstance violates the Due Process clause because the statute, on its face, fails to require a nexus between culpability and being in a vehicle. As noted, this problem has been avoided in other states by drafting statutes that require that the vehicle be an instrumentality of the crime. In California, the shooter’s presence in the car may be happenstance and yet the fact of being in a car results in eligibility for the death penalty.
Appellant’s second argument, in the alternative, is that the special circumstance is being applied to him irrationally under the facts of this case. First, the degree of murder was automatically elevated to first degree by the same facts that establish the special circumstance. This means that the jury is deprived of the opportunity to take provocation or lack of premeditation into account. This alone differentiates appellant’s case from thousands in which juries have found second degree murder under similar facts.
Respondent answers this aspect of appellant’s argument with a citation to Lowenfield v. Phelps (1988) 484 U.S. 231, 241-243 [98 L. Ed. 2d 568, 582-583, 108 S. Ct. 546]. Phelps did not involve a “similar claim.” It held that the same factual detail of the crime may be relied upon both to confer death eligibility and as an aggravating factor in the penalty phase. It did not address a special circumstance which duplicated a degree-elevating mechanism within a state felony-murder rule. It did not approve a legislative scheme under which a select and arbitrary group of second degree murders are suddenly transformed into capital cases by virtue of a fact, being in a car, which is incidental to the offense. Respondent is unable to cite authority supporting a state power to do the latter.
Second, appellant distinguished his case from the type of case to which the Legislature and electorate thought it was referring in enacting subsection (a)(21). As explained in appellant’s opening brief, the voters were told that the new “drive-by” special circumstance would apply to “cold-blooded” killings. In this case, the judge instructed the jury on heat-of-passion manslaughter because the evidence raised an issue as to “cold-bloodedness.” However, by operation of Penal Code section 189, the jury was not permitted to consider whether that same passion had obscured appellant’s ability to premeditate. Thus, the verdict does not exclude the possibility that this crime was “hot-blooded” and beyond the intent of the voters.
Respondent argues the facts in a manner yielding an inference that appellant’s car was, in fact, an instrumentality of the offense, because appellant appears to have chosen to meet M in the alley, by driving there, and to shoot M. This is a plausible view of the facts, but it is not one necessarily resolved by the verdict. Appellant objects to resolution of factual issues by this Court, when those facts should have been presented to the jury. See People v. Sedeno (1971) 10 Cal. 3d 703. A reasonable juror could have found that appellant acted without premeditation.
Third, this was not a gang-related shooting. The electorate was concerned with drive-by shootings because they are the prevalent style of gang warfare in Southern California. In a prototypical drive-by, a car full of gang members drives by a location at which rival gang members congregate, epithets are exchanged, and gunfire erupts. The use of the car is an integral part of the design of the assault and aggravates the culpability of the shooter and the aiding and abetting occupants. This case has nothing to do with that factual scenario.
Respondent contends that appellant attempted to transform this into a gang case. (RB at p. 22, first paragraph.) This is entirely beside the point, since appellant did not admit gang membership or gang motivation. Appellant attributed a statement to M which implied that M was a gang member. The evidence was relevant, if at all, to appellant’s concern for his own safety. There is no evidence that this was a gang-related drive-by shooting.
Respondent argues alternatively that it is “inappropriate for the statute to have a favorable effect on non gang-related shootings.” Appellant is not asking that the statute have a favorable effect. He is asking that the statute not be applied to him because his conduct was not what the electorate sought to punish.
Appellant also sought to distinguish his conduct from the sort of crime contemplated by the statute by pointing out that he did not fire into a crowd of pedestrians. The special circumstance does not require that the victim be a pedestrian. See, however, Penal Code section 12022.55, enhancing sentence for drive-by shooting in which shooter causes death or bodily injury of someone “other than an occupant of a motor vehicle.” The difference between the special circumstance and the enhancement under section 12022.55 represents the incremental movement of legislation away from the core of the conduct sought to be deterred and punished and into areas in which overbreadth becomes a problem.
Respondent’s assertion that the presence of bystanders makes this equivalent to shooting at a crowd of pedestrians is simply unsupported by the evidence. Each of the three bystanders to whom respondent refers were far outside the field of fire. There was no one else in M’s car, and no one behind or immediately to either side of the car. This is not analogous to a typical drive-by shooting in which targets and innocent victims are commingled.
Respondent’s further assertion that M’s presence in a car has no legal significance is belied by the language of section 12022.55 above. At the time that provision was adopted, the Legislature was concerned with limiting the drive-by enhancement to the prototypical gang-related drive-by in which victims are pedestrians. The omission of the “pedestrian” requirement from the special circumstance is presumptively deliberate, but once again simply leads to an overbreadth problem.
Appellant can summarize his grievance briefly. Had he stepped out of his van and shot M, all other things being equal, the jury would likely have convicted him of second degree murder and he would have been sentenced to 15 years to life plus applicable enhancements. Because he was in the van, the jury was unable to consider anger as a motivating or mitigating force, and he is serving life without possibility of parole. Under the facts of the case, the difference is unwarranted, arbitrary and irrational. Respondent has not shown otherwise.
E. The Bostick Decision Is Not Similar
Respondent attempts to bring this case within the scope of the decision in People v. Bostick, supra, calling the claim therein “similar” to appellant’s claim. The claims are totally dissimilar. The contention in Bostick was that the Legislature in enacting section 12022.55 intended that it apply to shootings from moving vehicles. The Court of Appeal never reached that issue, finding that the language of section 12022.55 was clear and did not require construction. The contention in this case is that Penal Code section 190.2, subsection (a)(21) is unconstitutionally overbroad, on its face and as-applied, under both the Due Process clause and the Eighth Amendment. Appellant is not arguing for a construction of the statute consistent with some narrow legislative intent, appellant is contending that the imposition of life without possibility of parole for simply being in a car at the time of a shooting is irrational and arbitrary. As noted in appellant’s opening brief, the statute could be rescued by modifying its terms to require that the vehicle be an instrumentality of the offense.
Consequently, the issues presented in this case were not resolved in Bostick. In fact, they were expressly reserved. Anything said about the rational basis of Penal Code section 12022.55 in Bostick was dicta, since the appellant therein did not make the arguments made herein. Appellant concedes that anything stated about overinclusiveness in the concurring opinion was equally dicta. This Court should consider the issues in light of all pertinent authority.
F. This Court Should Review Appellant’s Eighth Amendment Claim as Though Appellant Had Been Sentenced To Death
In addition to asserting facial and as-applied due process challenges, appellant’s opening brief raised the issue that the Eight Amendment generally prohibits death-eligibility for unpremeditated murder coupled with innocuous conduct. Respondent returns to its “lack of standing” argument in focussing on the fact that appellant was not actually sentenced to death. Since the application of a single statute, Penal Code section 190.2, subsection (a)(21) is at stake, this Court cannot logically divide the analysis on the basis of the penalty imposed. The statute must be construed consistently regardless of what sentence is ultimately imposed.[11]
Respondent does not attempt to refute appellant’s premise, which is that death is an excessive punishment for ordinary non-premeditated murders. People v. Stanley, supra, amply supports the proposition that in order to be death eligible, a defendant must either commit a murder with premeditation or a special circumstance involving facts which are the functional equivalent of premeditation. Being in a car is not the functional equivalent of premeditation. For this reason alone, subsection (a)(21) is unconstitutional.
Having conceded this point by silence, respondent resorts to arguing that the other facts of this case manifested premeditation. (RB at pp. 26-27.) The argument culminates in the statement that “appellant deliberately chose to brutally murder M.” (Ibid.) Unfortunately for respondent, the verdict in this case does not necessarily resolve that issue, and there was substantial evidence from which a jury could have found absence of premeditation. Having found no justification for the shooting, the jury in this case would have bypassed any issue of mental state and relied solely on the discharge of a firearm from a vehicle to find first degree murder and the special circumstance. Had appellant been sentenced to death, this route to conviction would have been constitutionally unacceptable.
Appellant is entitled to a jury determination of facts upon which the judgment is based. This Court is not authorized to find premeditation on the basis of the appellate record and respondent’s arguments.
In its final point, respondent contends that intent to kill is sufficient, in and of itself, to warrant the death penalty. Appellant concedes that this is the holding of two United States Supreme Court decisions. However, those decisions did not involve the California sentencing scheme, nor did they purport to apply a second rule, which is that the selection criteria must provide a meaningful basis for distinguishing the few cases in which the death penalty is appropriate from those in which it is not. Thus, the inquiry does not end with the jury’s necessary finding in this case that appellant intended to kill M.
Appellant’s sentence results not from his intent to kill but from his being in a vehicle at the time he fired. It is upon this latter fact that the analysis must focus in determining the “meaningfulness” of the legislative classification. Being in a vehicle is not so intrinsically evil as to distinguish it from other homicides. As opponents of the drive-by special circumstance wrote in the ballot pamphlet, a person who shoots and kills from a car receives the death penalty while a person who walks into a day-care center an kills an innocent child does not.
Respondent is correct that the Legislature and voters have identified a serious problem – drive-by shootings. Respondent is incorrect in contending that the statute reliably identifies and addresses that problem. The statute needs to require that the car be a deliberately chosen instrumentality of the homicide, in order to eliminate cases in which the defendant’s presence in the car is mere happenstance or, as in this case, precedes the events leading to the homicide. Until the statute is modified, it does not provide a sufficiently meaningful basis for death-eligibility.
G. The Inquiry Is Not Limited to Whether Appellant’s Conduct Fell Within the Terms of the Statute
Respondent’s final subargument, which should logically have been its first, is that appellant’s conduct fell within the terms of the statute and that no further inquiry is required.
People v. Smith (1984) 35 Cal. 3d 798, 810, was concerned with a vagueness challenge to a child abuse statute. The quote selected by respondent answers a contention that because the statute might apply to unusual circumstances in which the defendant would not be aware of violating its terms, the statute was too indefinite. The answer is that a defendant whose conduct falls squarely within the terms and legislative intent of a statute cannot challenge its vagueness.
Appellant herein has not challenged subsection (a)(21)as vague and has conceded that his conduct falls within its terms. He disputes the correspondence between his conduct and the evil sought to be remedied by the Legislature. He challenges the statute as reaching conduct that the Legislature did not intend to reach, but more importantly as reaching conduct that has no rational connection to culpability. Under these circumstances, People v. Smith has no authoritative impact.
What respondent is really attempting to argue is that any error was harmless because an inference could be drawn from the record that appellant chose to employ the van to commit the offense. Once again, respondent is asking this Court to substitute its conclusion for an issue that should have been presented to the jury under a more narrowly drafted statute. That is a harmless error analysis in which this Court should choose not to participate. Appellant’s conduct should not be measured against a hypothetical statute substituted for an unconstitutionally overbroad statute. The special circumstance should be reversed.
H. Additional Authorities Support Appellant’s Overbreadth Challenge
In his opening brief at pp. 50-52, appellant surveyed the law of several sister states to demonstrate that in those which have specifically targeted drive-by shootings, the legislature has imposed narrowing criteria that ought to be present in the California statutes. An additional statute has come to light.
Colorado Revised Statutes C.R.S. 16-13-301 (1997)provides in pertinent part:
(2.2) ” Drive-by crime” means a first degree assault as defined in section 18-3-202, C.R.S., second degree assault as defined in section 18-3-203, C.R.S., attempted first degree or second degree assault, felony menacing as defined in section 18-3-206, C.R.S., or illegal discharge of a firearm as defined in section 18-12-107.5, C.R.S., any of which is committed while utilizing a vehicle for means of concealment or transportation.” (Italics supplied).
Appellant also notes that there are numerous insurance coverage cases arising from alleged drive-by shootings which consider the issue of whether the vehicle was “used” within the meaning of the policy. See, for example, Whitehead v. State Farm (C.A.Tex. 1997) 952 S.W.2d 79 and Bourne v. Farmers Ins. Co. (S.Ct. Mich. 1995) 449 Mich. 193; 534 N.W.2d 491. It is anomalous that the nexus between a vehicle and a drive-by shooting receive narrower scrutiny in a civil context than a criminal context. But the civil cases demonstrate that being in a car, in and of itself, is often a fortuity. This Court should reach a similar conclusion.
CONCLUSION
For the reasons stated above, and in appellant’s opening brief, Penal Code section 190.2 subsection (a)(21) is unconstitutional either on its face or as applied to appellant. The special circumstance should be reversed and the judgment accordingly modified to specify a sentence of 25 years to life plus applicable enhancements.
Respectfully submitted,
_______________________
Ralph H. Goldsen
Attorney at Law
Attorney for Appellant
JOHN DOE
(PETITION FOR REVIEW)
NECESSITY FOR REVIEW
I
REVIEW SHOULD BE GRANTED TO SETTLE THE RECURRENT ISSUE OF WHETHER
DEATH-ELIGIBILITY MAY BE CONFERRED BY A FACTUAL FINDING WHICH
MERELY DUPLICATES AN ELEMENT OF STATUTORY FELONY MURDER
In this case, appellant was convicted of first degree murder by application of the felony-murder statute, Penal Code section 189, which provides in pertinent part:
“All murder which is perpetrated by means of a destructive device or explosive, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnaping, train wrecking, or any act punishable under Section 286, 288, 288a, or 289, or any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree. All other kinds of murders are of the second degree.” (Emphasis supplied).
The jury, having found first degree liability on the basis of the emphasized language, was then asked to find the special circumstance of whether “The murder was intentional and perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person or persons outside the vehicle with the intent to inflict death.” (Penal Code section 190.2(a)(21)). Under these circumstances, the special circumstance duplicates the element of the felony-murder statute by which the homicide became first degree murder.
This Court has indicated a preference for construing special circumstances in a manner which prevents their overlap with the statutory felony-murder rule (People v. Bigelow (1984) 37 Cal. 3d 731, 751.) The Court of Appeal in this case cites Lowenfield v. Phelps (1988) 484 U.S. 231, 246 [98 L. Ed. 2d 568, 582-583, 108 S. Ct. 546] for the proposition that special circumstances may duplicate elements of state-law statutory murder. However, Lowenfield did not involve the same contention. The United States Supreme Court held therein that the same factual detail of the crime may be relied upon both to confer death eligibility and as an aggravating factor in the penalty phase. It did not address a special circumstance which duplicated a degree-elevating mechanism within a state felony-murder rule. It did not approve a legislative scheme under which an arbitrary group of second degree murders –those committed from within a car — are suddenly transformed into capital cases by virtue of a fact which is incidental to the offense. As applied in a case like this, Lowenfield would merely sanction treating the drive-by aspect of the homicide as both a special circumstance and an aggravating factor.
The Court of Appeal also cites this Court’s decision in People v. Edelbacher (1989) 47 Cal. 3d 983, 1023, fn. 12, for the proposition that a special circumstance may duplicate an element of the capital homicide. It is correct that in Edelbacher, this Court cited Lowenfield, supra, as approving a special circumstance’s duplication of an element of first degree murder. However, the special circumstance at issue in Edelbacher, murder while lying in wait, duplicates an element of common law first degree murder, premeditation. This Court has repeatedly assumed an equivalence between lying-in-wait and premeditation. (People v. Carpenter (1997) 15 Cal. 4th 312, 390.) In contrast, this Court has not approved duplication by a special circumstance of an element of murder that has no common law origin. And, as noted, Edelbacher’s reliance on Lowenfield may be imprecise. Review should be granted in this case to address this recurrent issue.
II
REVIEW SHOULD BE GRANTED TO RESOLVE THE IMPORTANT QUESTION OF
WHETHER DEATH-ELIGIBILITY MAY BE CONDITIONED ON A FACTUAL
PREDICATE THAT DISPENSES WITH A NEED FOR PREMEDITATION OR AN
EQUIVALENT MENTAL STATE
In the Court of Appeal, and now in this petition, appellant contends that the Eighth Amendment prohibits conditioning death eligibility on a fact — being in a car at the time of a shooting — that does not reflect premeditation or an equivalent mental state. The criteria which a state chooses to employ in making a determination of death-eligibility must be rationally related to culpability, or “moral guilt.” (Enmund v. Florida (1982) 458 U.S. 782, 800, 73 L. Ed. 2d 1140, 102 S. Ct. 3368.)[12] A death penalty law avoids the Eighth Amendment’s proscription of arbitrary sentencing procedures if it suitably narrows the class of death-eligible persons, then provides for an individualized penalty determination at the sentencing and appeal stages. (People v. Rodriguez (1986) 42 Cal. 3d 730, 778.) A special circumstance, to perform its constitutional function, must identify a subclass of all murderers who are more culpable than some objective benchmark.
Subsection (a)(21), as noted, is qualitatively different than any other special circumstance previously considered by this Court because it applies to all intentional murders in which the defendant was in a car when he or she fired the fatal shots. There is no requirement that the killing be premeditated.
The benchmark to which this Court has looked in the past is an “ordinary premeditated murder.” (People v. Morales(1989) 48 Cal. 3d 527, 557.) Rejecting a claim similar to appellant’s herein, that a special circumstance failed to rationally narrow the class of death eligible persons, the Court held that “an intentional murder, committed under circumstances which include (1) a concealment of purpose, (2) a substantial period of watching and waiting for an opportune time to act, and (3) immediately thereafter, a surprise attack on an unsuspecting victim from a position of advantage, presents a factual matrix sufficiently distinct from “ordinary” premeditated murder to justify treating it as a special circumstance.” (Ibid., emphasis supplied; see also People v. Stanley (1995) 10 Cal. 4th 764, 795.
Instead of attempting to apply this Court’s prior decisions concerning use of special circumstances to narrow the class of death-eligible defendants under California law, the Court of Appeal in this case looks to the United States Supreme Court’s constitutional minimums for actual imposition of the death penalty, as specified in Enmund, supra and Tison v. Arizona (1987) 481 U.S. 137, [95 L.Ed. 2d 127, 107 S.C.. 1676].[13] The Court of Appeal applied the wrong legal standard, ignoring the “benchmark” analysis applicable to the constitutional validity of special circumstances, and instead holding subsection (a)(21) valid simply because it requires an intentional homicide and thus satisfies Enmund.
The constitutional problem in this case is that Penal Code section 189, as the basis for first degree murder liability, bypasses a determination of premeditation. As the Court of Appeal seems to have recognized, appellant could have been found guilty of second degree murder had premeditation been necessary for a first degree conviction. In evaluating the drive-by special circumstance, this Court must ask whether the facts required to be proved under subsection (a)(21) are sufficient to demonstrate moral guilt in excess of that attributable to an “ordinary premeditated murder.” The clear answer is that they are not.
Under subsection (a)(21) as construed by the Court of Appeal, it is possible for a classic second degree murderer to receive the death penalty, simply because the defendant was in a car at the time of the offense. A classic second degree murder, committed from within a car, is in all instances less reprehensible than an ordinary premeditated murder. The drive-by special circumstance is thus defective, when applied in conjunction with Penal Code section 189, because it necessarily includes conduct that does not warrant the death penalty.
Appellant concedes that a “drive-by” murder could be treated as an aggravated form of first degree murder if premeditation were required. The voters in adopting subsection (a)(21) were led to believe that this was a requirement:
“Proposition 196 would allow the death penalty, or life in prison without possibility of parole, for intentional, cold-blooded, first degree murder committed by the discharge of a firearm from a motor vehicle at a person outside the vehicle.”
(Ballot Pamph., Proposed Amends. to Cal. Const. with arguments to voters, Primary Elec. (Mar. 26, 1996), argument in favor of Prop. 196, p. 26.) The crucial terminology in the foregoing description is “cold-blooded.” The proponents of the measure wanted the voters to believe that the special circumstance would apply to deliberate and premeditated murder, i.e., cases in which the plan to shoot and kill from the car was formed substantially before the shooting.[14] The offense in this case is not within the class to which the voters intended the special circumstance to apply.
Other states which have adopted a drive-by special circumstance have so limited it. Appellant’s review of sister-state law reveals only one jurisdiction – Alabama – in which shootings from a vehicle specifically qualify a defendant for the death penalty. See Ala. Codes section 13A-5-40(a)(18).[15] In contrast, the state of Washington has enacted a death penalty provision applicable to defendants who commit drive-by murders for the purpose of retaining or obtaining group membership. See State v. Broadaway (S.Ct. Wash. 1997) 113 Wash. 2d 118 at 123, fn. 1; 942 P.2d 363 (upholding an initiative against a “single subject rule” challenge.) The “purpose” clause of that Washington provision dramatically narrows the scope of the law and would not apply to appellant’s situation. It would operate to further the intent of the California voters to restrict operation of the law to gang members or prospects.
Federal law provides enhanced penalties for drive-by shootings under limited circumstances. For example, 18 U.S.C. Section 36 applies to drive by shooting defendants who, “in furtherance or to escape detection of a major drug offense and with the intent to intimidate, harass, injure, or maim, fires a weapon into a group of 2 or more persons . . .“ It also appears that Congress considered but rejected a proposal to extend the federal death penalty law to certain drive-by shootings. See United States v. Nelson (M.D. Tenn. 1996) 920 F. Supp. 825, at 831.
Oklahoma also has a non-capital statutory provision that merits attention. 21 Okla. Statutes section 652(b) provides:
“Every person who uses any vehicle to facilitate the intentional discharge of any kind of firearm, crossbow or other weapon in conscious disregard for the safety of any other person or persons shall upon conviction be punished by imprisonment in the State Penitentiary for a term of not less than two (2) years nor more than twenty (20) years.” The Oklahoma statute imparts a nexus requirement in which the vehicle must be a deliberate instrumentality of the shooting.
Finally, Colorado Revised Statutes C.R.S. 16-13-301 (1997) provides in pertinent part:
(2.2) ” Drive-by crime” means a first degree assault as defined in section 18-3-202, C.R.S., second degree assault as defined in section 18-3-203, C.R.S., attempted first degree or second degree assault, felony menacing as defined in section 18-3-206, C.R.S., or illegal discharge of a firearm as defined in section 18-12-107.5, C.R.S., any of which is committed while utilizing a vehicle for means of concealment or transportation.” (Italics supplied).
As can be seen, the majority of sister states which have adopted drive-by statutes apply them only under circumstances where the vehicle is an instrumentality of the offense. The statutes in those states functionally require a premeditated murder, thereby avoiding the problem with which appellant in this case is concerned.
Review should be granted to determine whether subsection (a)(21) violates the Eighth Amendment when coupled with a murder conviction based on Penal Code section 189, by applying this Court’s prior benchmark of an “ordinary premeditated murder.” This Court’s invalidation of the extant statutory provision would not prevent, but would actually encourage, the adoption of an appropriately-limited drive by special circumstance. “[I]f a court invalidates a provision of the initiative entirely, elected lawmakers, appreciating the will of the voters, may themselves respond to the court decision and enact a new legislative provision that effectuates the voters’ intent and cures the constitutional defect.” (Kopp v. Fair Political Practices Commission (1995) 11 Cal. 4th 607, 682, conc. and diss. op. of Kennard, J.)
III
REVIEW SHOULD BE GRANTED TO RESOLVE RECURRENT QUESTIONS
CONCERNING THE RELATIONSHIP BETWEEN SUBSTANTIVE DUE PROCESS, THE
EIGHTH AMENDMENT, AND THE NEED FOR RATIONALITY IN PENAL STATUTES
CONFERRING DEATH-ELIGIBILITY
In the Court of Appeal, appellant contended that subsection (a)(21) violates “substantive due process” under the Fourteenth Amendment, as well as the Eighth Amendment, because its scope includes conduct considerably broader than the evil contemplated by the Legislature (or voters) and imposes liability for a fact that is sometimes fortuitous, namely being in a car. Appellant’s inspiration for this specific argument was the concurring opinion of Justice Kline in People v. Bostick (1996) 46 Cal. App. 4th 287, a non-capital case which considered a drive-by enhancement, Penal Code section 12022.55, that contains language similar to subsection (a)(21).
The defendant in Bostick advanced an argument that the Legislature contemplated application of the drive-by enhancement only where there was a shooting from a moving vehicle. The defendant in Bostick has been sitting in his car talking to the victim, a pedestrian standing by the car, for 5 or 10 minutes before shooting out the window. The shooting was not gang-related and was not fairly characterized as a “drive-by.” The majority opinion in Bostick holds that the legislative intent of Penal Code section 12022.55 is irrelevant to its application to particular facts unless the statute is ambiguous, and the statute is not ambiguous. The fact that the defendant’s conduct fell within its clear terms resolved the issue, even if the conduct was not what the Legislature had intended to prohibit or penalize when it adopted the provision. Justice Kline, concurring, stated that he wrote separately “because I agree with appellant’s theory of the statute and believe it appropriate to explain why I nevertheless reject his argument.” (Id. At 292, conc. op.).
He continued: “As appellant correctly points out, section 12022.55 was designed to increase the punishment for a so-called ‘drive-by’ shooting–that is, the discharge of a weapon from a moving vehicle in an area in which large numbers of people are likely to be present–and this case arguably does not involve such a shooting.” (Id. at 293, conc. op.) “Application of section 12022.55 to the discharge of a firearm from a vehicle not then being operated would not defeat or obstruct the legislative purpose because it is not inconsistent with application of the enhancement to conventional drive-by shootings; nor would such application be patently absurd, as a vehicle provides a redoubt that might facilitate the commission of criminal acts even if it is not at that moment being used for transportation. [Fn. Omitted.] Thus, because appellant cannot demonstrate “that the natural and customary import of the statute’s language is either ‘repugnant to the general purview of the act,’ or for some other compelling reason, should be disregarded, this court must give effect to the statute’s ‘plain meaning.’” (Id. at 296.)
Finally:
>“Defendant has staked his appeal on questions of statutory construction and not any claim that the statute may be unconstitutional on its face or as applied to him. He does not contend, for instance, that the statute is fatally overinclusive for punishing conduct not within the apparent legislative purpose, or is underinclusive for excluding conduct which may appear materially indistinguishable from included conduct. (See Brown v. Merlo (1973) 8 Cal. 3d 855, 876-877; cf. United States v. McDougherty (9th Cir. 1990) 920 F.2d 569, 572 [federal enhancement for distribution of drugs within 1,000 feet of elementary school]; United States v. Thornton (9th Cir. 1990) 901 F.2d 738, 740 [same].) Overinclusiveness may or may not appear in the statute’s facial applicability to shootings in which the defendant’s presence in a car was mere happenstance. As for underinclusiveness, I confess bewilderment at the statute’s exclusion of shootings in which the victim is “an occupant of a motor vehicle.” (§ 12022.55.) Like the majority, however, I express no opinion on how such challenges might fare should they be properly raised in another case.”
(Bostick, supra, 46 Cal. App. 4th at 296, fn. 5.)
Appellant in this case argued that subsection(a)(21) should be declared void as overinclusive, as applied under the facts of this case.
Bostick concerned a sentence enhancement. “Overinclusiveness” in this case must be measured against the distinct purposes of the drive-by special circumstance, the primary purpose of which is to “genuinely narrow’ the class of persons eligible for the death penalty” (Zant v. Stephens (1983) 462 U.S. 862, 877 [77 L. Ed. 2d 235, 249, 103 S. Ct. 2733]), or to provide a ‘meaningful basis’ for distinguishing the ‘few’ murder cases in which death is imposed from the ‘many’ in which it is not (see, e.g., Godfrey v. Georgia, supra.) This argument concerns a far more delimited governmental purpose than that at issue in Bostick, and with a penal consequence that necessarily warrants heightened scrutiny of legislative classifications.[16]
The Eighth Amendment issue is whether appellant’s presence in the car at the time of the shooting furthers the requirement that California “narrow” the application of the death penalty to a subset of all murders that have particular aggravating characteristics. The similar “substantive due process” issue is whether the classification created by the drive-by special circumstance fits the legislative purpose with sufficient precision that the statute does not extend to conduct which has no relationship to culpability. Substantive due process prevents government from enacting legislation that is “arbitrary” or “discriminatory” or lacks “a reasonable relation to a proper legislative purpose.” See Nebbia v. New York (1934) 291 U.S. 502, 78 L. Ed. 940, 54 S. Ct. 505. “The cardinal principle of substantive due process is that a law which deprives a person of life, liberty, or property must not be the product of arbitrary legislative judgment. [Citations.] Such a law must be reasonably related to the object sought to be attained by its enactment.” (People v. Armbruster (1985) 163 Cal. App. 3d 660, 664.)
Appellant’s contention in this case is that his presence in a car at the time of the shooting was “mere happenstance” as that phrase was used in Bostick, supra. Appellant was not a gang member cruising for an opportunity to shoot a rival gangster in cold blood. He was simply a citizen with a gun in his car who lost his temper. While in his car, he became engaged in an argument with the victim. The victim employed epithets which could enrage a reasonable person of average sensibilities and cause them to kill impulsively. Appellant could just as easily have gotten out of his vehicle before firing. These facts make it inappropriate to treat appellant as death-eligible.[17] Furthermore, if there is some dispute regarding the nexus between appellant’s car and the offense, that is an issue properly addressed by a jury in the first instance.
Appellant contended that the Court of Appeal should apply a heightened standard of rationality to the question of overinclusiveness. “If a state law infringes upon personal liberty . . . it is constitutional only if it furthers compelling state interests and is narrowly drawn to serve those interests.” (Reno v. Flores (1993) 507 U.S. 292, 123 L. Ed. 2d 1, 113 S. Ct. 1439.) Although the Court of Appeal cites Reno v. Flores in its opinion, it refused to identify “avoiding unjustified execution” as the liberty interest at stake and applied only a minimal rationality requirement. (Slip op. at pp. 20-21, 26-27.) It held that the Legislature could intend that “being in a vehicle” apply in all cases as a deterrent measure, even in cases in which vehicular occupancy is fortuitous. (Id. at 22-23.) As appellant understands the opinion, the Court of Appeal suggests that being in a vehicle is a rational basis for executing people regardless of the connection between that fact and the circumstances of the homicide.
The Court of Appeal also suggests that the limitations imposed by sister states in their drive-by statutes could be counterproductive by providing accused criminals with a defense. (Slip op. at p. 24.) However, the preclusion of legitimate non-culpability defenses to imposition of the death penalty is not a proper governmental purpose.[18] The Court of Appeal erred in identifying “the proper legislative purpose of reducing firearm carnage” as the measure of the statutes’s rationality. (Slip op. at p. 27.) The purpose at issue is that of “genuinely narrowing the class of persons eligible for the death penalty.” The preclusion of spurious defenses is not a compelling governmental interest in this context.
Finally, the Court of Appeal suggests (Slip op. at pp. 25-26) that appellant herein erred in tethering his challenge to substantive due process rather than the equal protection clause. To the extent that the Court of Appeal has found procedural default in this regard, appellant urges this Court to grant review despite this default and exercise its authority to address an equal protection argument, since this issue will necessarily recur. However, appellant believes that the analysis of substantive due process and equal protection claims is essentially the same, anyway.
Review in this case would give this Court an opportunity to specify the standard of review applicable to constitutional challenges to the rationality of special circumstances and a further opportunity to clarify the “nebulous and elastic ‘notions of fairness’ which form the concept of substantive due process.” (Slip op. at p. 27.) Appellant respectfully submits that the Court of Appeal was overly deferential, if not wholly indulgent, in its treatment of a death-qualifying statute that was sold to the voters as something other than what it now proves to be in practice.
This Court should not wait for this issue to be presented in the context of a death penalty case. If there are defects in the drive-by special circumstance, as appellant has argued, then there is a likelihood that the statute will be misapplied many, many times during the years in which it ordinarily takes a capital case to go from filing in the lower court to decision on appeal in this Court. The delay involved in waiting for a capital case to pose these issues under similar facts could result in dozens of other convictions or special circumstance findings having to be undone retrospectively. Secondarily, the mere threat of prosecutors to seek a death penalty under this provision may, in the interim, coerce a multitude of guilty pleas that would similarly be suspect in retrospect. Given the gravity of the issues presented, this Court should reach the issues as quickly as possible, so as to impart stability to the criminal justice system and protect the expectations of the participants.
CONCLUSION
Being in a car is not the functional equivalent of premeditation. Death would be an excessive penalty for a second-degree impulsive murder committed by shooting from a car.
[1]For purposes of appeal, appellant concedes that he was in a motor vehicle at the time he discharged a firearm and killed Montano. The only disputed issue at trial was whether appellant’s act was justified by Montano reaching for a weapon. That factual dispute has no bearing on the validity of the drive-by special circumstance.
[2]Also pertinent to drive-by shootings not resulting in death is Penal Code section 12034, subd. (d)).
[3]Legislative materials pertinent to Senate Bill 9, which proposed the drive-by special circumstance through the initiative process, reflect an explicit concern with the requirements of
Godfrey v. Georgia, supra, and the question of whether drive-by murders were sufficiently distinguishable from other first degree murders as to deserve the death penalty. See Bill Analysis, Senate Committee on Criminal Procedure, hearing date 3/7/95.
[4]The requirements of substantive due process overlap with and resemble the requirements of the equal protection clause. (In re Evans (1996) 49 Cal. App. 4th 1263.) The equal protection clause requires generally that persons be treated equally who are similarly situated with respect to the purpose of the law. To some extent, appellant is contending that he is not being treated equally with a class of second degree murderers to which he is similarly situated. A substantive due process analysis is more directly concerned with the correspondence between the legislative classification and the conduct at issue. The statute at issue in this case does not purport to divide the world of second degree murderers into two distinct groups.
[5]
CALJIC 8.73 provides: “When the evidence shows the existence of provocation that played a part in inducing the unlawful killing of a human being, but also shows that such provocation was not such as to reduce the homicide to manslaughter, and you find that the killing was murder, you may consider the evidence of provocation for such bearing as it may have on the question of whether the murder was of the first or second degree.”
[6]Another recurrent factual scenario in which the drive-by special circumstance is liable to apply counterproductively involves motorists’ efforts to defend against carjackings. If a motorist erroneously perceives a situation and shoots someone mistakenly believed to be a carjacker, they face the death penalty.
[7]Enmund v. Florida held that commission of a felony murder alone, without evidence of intent to kill, is an insufficient basis upon which to impose the death penalty. Enmund does not stand for the proposition that all intentional murders qualify for the death penalty. More is required than an intent to kill. Were intent to kill sufficient, then all second degree murders based on express malice would qualify, even though most would fall below the benchmark of an “ordinary premeditated murder” in their degree of moral wrongfulness.
[8]Subsection 18 applies to: “Murder committed by or through the use of a deadly weapon fired or otherwise used within or from a vehicle.”
[9] Appellant believes it unnecessary to argue that “freedom of travel” is a constitutionally protected right that may be adversely impacted by subsection (a)(21).
[10] Respondent states that “there is no constitutional right to discharge a firearm from a motor vehicle.” In so stating, respondent has confused the issue. California law already prohibits discharging a firearm in public, and homicides that result from such a shooting. The statutory provision at issue provides greater punishment when that conduct occurs while the shooter is in a car. The issue is whether “being in a car” is rationally punishable in all instances.
[11] Had California adopted a statutory scheme under which this particular drive-by special circumstance could only result in LWOPP, then respondent’s analysis might be tenable. That issue is academic.
[12]2. Enmund held that commission of a felony murder alone, without evidence of intent to kill, is an insufficient basis upon which to impose the death penalty. Enmund does not stand for the proposition that all intentional murders qualify for the death penalty. More is required than an intent to kill. Were intent to kill sufficient, then all second degree murders based on express malice would qualify, even though most would fall below the benchmark of an “ordinary premeditated murder” in their degree of moral wrongfulness.
[13]
The Court of Appeal erroneously refers to this decision as “People v. Tison.” (Slip Op. at p. 18.)
[14]
The authors of Proposition 196, in their rebuttal to the argument against Proposition 196, expressly stated their assumption that drive-by shootings are not usually crimes of passion. This assumption was carried over from the amendment of Penal Code section 189 to include the drive-by language in 1993. A committee report relative to Senate Bill 9 of 1995 stated, regarding the 1993 amendment to Penal Code section 189:
“In operation, the provision assumes as a matter of law that premeditation or deliberation are present in a drive-by shooting committed with the intent to inflict death, thereby making it easier to obtain a first degree murder conviction . . .”
[15]5. Subsection 18 applies to: “Murder committed by or through the use of a deadly weapon fired or otherwise used within or from a vehicle.”
[16]6. Legislative materials pertinent to Senate Bill 9, which proposed the drive-by special circumstance through the initiative process, reflect an explicit concern with the requirements of
Godfrey v. Georgia, supra, and the question of whether drive-by murders were sufficiently distinguishable from other first degree murders as to deserve the death penalty. See Bill Analysis, Senate Committee on Criminal Procedure, hearing date 3/7/95.
[17]
It bears repeating that questions of legislative rationality might be approached differently if the statutes yielding a sentence of life without possibility of parole were divisible from statutes resulting in the death penalty. At the present time they are not, and they must therefore be construed consistently, irrespective of the penalty sought or imposed.
[18]
At oral argument in the Court of Appeal, appellant was asked why his “overinclusiveness” challenge did not apply equally to Penal Code section 189’s elevation of second degree murders to first degree murders when committed in a vehicle. Appellant replied that the death-eligibility consequence of subsection (a)(21) requires a different analysis than would apply to mere criminalization of conduct.
