Motion Bank # M-3007 (Re: DP II [Checklist: (6) Challenge To California Death Eligibility Scheme].)
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JEFF BROWN
Public Defender
BY: MICHAEL N. BURT
and RANDALL MARTIN
Deputy Public Defenders
555 Seventh Street
San Francisco, California 94103
(415) 553-1671
Attorneys for Defendant
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE CITY AND COUNTY OF SAN FRANCISCO
PEOPLE OF THE STATE OF CALIFORNIA, NO.
Plaintiff,
vs.
JOHN DOE,
Defendant.
_______________________________________/
NOTICE OF MOTION AND MOTION TO BAR DEATH PENALTY FOR FAILURE TO COMPLY WITH THE EIGHTH AMENDMENT’S NARROWING REQUIREMENT
TO TERENCE HALLINAN, DISTRICT ATTORNEY OF THE CITY AND COUNTY OF SAN FRANCISCO, STATE OF CALIFORNIA; AND TO THE ABOVE-ENTITLED COURT:
PLEASE TAKE NOTICE that on the ____ day of ____________________, at 8:45 a.m., or as soon thereafter as the matter may be heard, in Department 24, defendant JOHN DOE will move the Court for an order barring the imposition of the death penalty in this case on the grounds that the 1978 death penalty statute, as interpreted and applied, violates the Eighth Amendment to the United States Constitution and its California counterpart.
This motion is based upon this notice, the attached memorandum of points and authorities, the accompanying declaration of Professor Steven Shatz, attached hereto as Exhibit A, the pleadings and documents already on file in this case, and any further evidence, arguments or authorities to be presented at the hearing on this motion, including the testimony of Professor Shatz.
DATED: January 17, 1997.
Respectfully submitted,
MICHAEL N. BURT
RANDALL MARTIN
Deputy Public Defenders
Attorneys for JOHN DOE
By:_______________________________________
MICHAEL N. BURT
MEMORANDUM OF POINTS AND AUTHORITIES
I.
THE CALIFORNIA DEATH PENALTY STATUTE FAILS TO NARROW THE CLASS OF OFFENDERS ELIGIBLE FOR THE DEATH PENALTY AND THUS VIOLATES THE EIGHTH AMENDMENT AND ARTICLE I, SECTION 17 OF THE CALIFORNIA CONSTITUTION.
INTRODUCTION
The Eighth Amendment to the United States Constitution requires that “death penalty statutes be structured so as to prevent the penalty from being administered in an arbitrary and unpredictable fashion.” (California v. Brown (1987) 479 U.S. 538, 541 [93 L.Ed.2d 934, 107 S.Ct. 837] citing Gregg v. Georgia (1976) 428 U.S. 153 [49 L.Ed.2d 859, 96 S.Ct. 2909] and Furman v. Georgia (1972) 408 U.S. 238 [33 L.Ed.2d 346, 92 S.Ct. 2726].) [Footnote 1] If a state enacts a death penalty, it “must … rationally distinguish between those individuals for whom death is an appropriate sanction and those for whom it is not.” (Spaziano v. Florida (1984) 468 U.S. 447, 460 [82 L.Ed.2d 340, 104 S.Ct. 3154].) To this end, a death penalty statute must, by rational and objective criteria, genuinely narrow the group of murderers from whom the ultimate penalty may be exacted:
“[T]here is a required threshold below which the death penalty cannot be imposed. In this context, the State must establish rational criteria that narrow the decisionmaker’s judgment as to whether the circumstances of a particular defendant’s case meet the threshold.”
(McCleskey v. Kemp (1987) 481 U.S. 279, 305 [95 L.Ed.2d 262, 107 S.Ct. 1756]; see Arave v. Creech (1993) 507 U.S. ___, ___ [123 L.Ed.2d 188, 200, 113 S.Ct. 1534, 1542]; People v. Bacigalupo (1993) 6 Cal.4th 457, 465.)
This narrowing function must be accomplished by the legislature through defining those categories of murderers eligible for the most severe penalty. Thus, in response to the Furman/Gregg mandate, “the States have adopted various narrowing factors which limit the class of offenders upon which the sentencer is authorized to impose the death penalty.” (Sawyer v. Whitley (1992) 505 U.S. ___, ___ [120 L.Ed.2d 269, 281, 112 S.Ct. 2514, 2520].) [Footnote 2] To survive constitutional challenge, the narrowing factors must “genuinely narrow” the class eligible for the death penalty.
“To avoid this constitutional flaw [of arbitrary and capricious sentencing], an aggravating circumstance must genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder. … Our cases indicate, then that statutory aggravating circumstances play a constitutionally necessary function at the stage of legislative definition: they circumscribe the class of persons eligible for the death penalty.”
(Zant v. Stephens (1983) 462 U.S. 862, 877-878 [77 L.Ed.2d 235, 103 S.Ct. 2733].) The requirement that the jury find an objectively-defined narrowing factor before considering the death penalty satisfies the Furman/Gregg concerns by channeling the jury’s discretion. (Blystone v. Pennsylvania (1990) 494 U.S. 299, 306-307 [108 L.Ed.2d 255, 110 S.Ct. 1078]; Lowenfield v. Phelps (1988) 484 U.S. 231, 245 [98 L.Ed.2d 568, 108 S.Ct. 546].) [Footnote 3] As is explained below, the California death penalty scheme, despite its appearance, does not contain the legislatively-defined narrowing factors necessary to meet the Furman/Gregg standard.
In California, from 1874 until the Supreme Court’s decision in Furman, the jury had complete discretion in imposing the death penalty in cases of first degree murder. In response to Furman, in 1973, the California legislature adopted a mandatory death penalty to be applied upon proof of one of five special circumstances. (Stats. 1973, ch. 719, §§ 1-5, pp. 1297-1300.) This statute was held unconstitutional in Rockwell v. Superior Court (1976) 18 Cal.3d 420. In 1977, when the California legislature again reestablished the death penalty, it returned discretion to the jury in applying the death penalty but attempted to limit that discretion by requiring that one of twelve “special circumstances” be found beyond a reasonable doubt to make a murderer death-eligible. (Stats. 1977, ch. 316, pp. 1255-1266.) Under the new statute, first degree murder was “punishable by life imprisonment except for extraordinary cases in which special circumstances are present.” (Owen v. Superior Court (1979) 88 Cal.App.3d 757, 760, quoted with approval in People v. Green (1980) 27 Cal.3d 1, 48.)
“The heart of that statute was the concept of ‘special circumstances.’ The jury’s discretion to impose the death penalty was strictly limited to those cases of first degree murder presenting one or more of several enumerated special circumstances; in all other cases the murder, no matter how willful, deliberate and premeditated, was a non-capital offense.”
(Id. at p. 49.) In short, special circumstances were intended to define death eligibility in this state:
“At the very least, therefore, the Legislature must have intended that each special circumstance provide a rational basis for distinguishing between those murderers who deserve to be considered for the death penalty and those who do not.”
(Id. at p. 61.) Whether the special circumstances in the 1977 statute in fact performed the constitutionally-required narrowing function was never decided by the courts. In finding the 1977 law constitutional, the United States Supreme Court assumed that the special circumstances narrowed the class of those eligible for the death penalty, [Footnote 4] but left open the possibility that additional evidence might be presented to show that the law did not comply with the Furman/Gregg mandate. (Pulley v. Harris, supra, 465 U.S. at pp. 53-54.) [Footnote 5]
The 1977 law was superseded in 1978 by the enactment of Proposition 7 (the “Briggs Initiative”). According to its author, the initiative “would give Californians the toughest death-penalty law in the country.” (California Journal Ballot Proposition Analysis, 9 Calif. J. [Special Section, November 1978] p. 5.) In fact, it was apparently the intent of the voters, as expressed in the ballot proposition arguments, to make the death penalty applicable to all murderers.
“And, if you were to be killed on your way home tonight simply because the murderer was high on dope and wanted the thrill, the criminal would not receive the death penalty. Why? Because the Legislature’s weak death penalty law does not apply to every murderer. Proposition 7 would.”
(1978 Voter’s Pamphlet, p. 34.) [Footnote 6] The Briggs Initiative sought to achieve this result principally by greatly expanding the number of special circumstances. Until recently, there were 27 special circumstances. [Footnote 7] Nonetheless, as the California Supreme Court has explained, the function of the special circumstances supposedly continues to be “to channel jury discretion by narrowing the class of defendants who are eligible for the death penalty.” (People v. Visciotti (1992) 2 Cal.4th 1, 74; accord, People v. Bacigalupo, supra, 6 Cal.4th at p. 467.)
“Under our death penalty law, therefore, the section 190.2 ‘special circumstances’ perform the same constitutionally required ‘narrowing’ function as the ‘aggravating circumstances’ or ‘aggravating factors’ that some of the other states use in their capital sentencing statutes.”
(Id. at p. 468.) Although the Supreme Court has, on several occasions, addressed the constitutionality of particular individual special circumstances, [Footnote 8] neither that court, nor the United States Supreme Court, has addressed whether the scheme as a whole complies with the Furman/Gregg mandate. [Footnote 9]
A. Penal Code Section 190.2 on its Face Fails to Narrow The Class of Death Eligible Murderers.
In enacting the precursor of the present California Penal Code section 190.2, the voters came close to achieving their stated purposes: they gave California one of the broadest — probably the broadest — death penalty statutes in the country [Footnote 10] and assured that a substantial majority of first degree murderers (and a majority of all murderers) would be death eligible. Because of the substantial overlap between the special circumstances listed in section 190.2 and the factors listed in Penal Code section 189, defining which murders are first degree murders, most first degree murderers are death eligible. [Footnote 11] Further, the sweeping nature of section 189 make most murders first degree murders.
In general, at the time of the alleged crimes in this case, section 189 creates three categories of murders which are first degree murders: murders committed by one of five listed means, killings committed during the perpetration of one of twelve felonies and murders committed with premeditation and deliberation. The overlap between the special circumstances listed in section 190.2 and the three groups of factors listed in section 189 varies according to whether the murder is intentional or unintentional.
In the case of intentional killings, four of the five “means” listed in section 189 (murders by destructive device or explosive, poison, torture and lying in wait) are also special circumstances. (See Pen. Code § 190.2, subds. (a)(4), (a)(6), (a)(15), (a)(18), (a)(19).) [Footnote 12] Only a first degree murder committed by means of “knowing use of ammunition designed primarily to penetrate metal or armor” does not automatically lead to death eligibility, but as indicated in the attached Declaration of Professor Shatz, counsel has been unable to locate a single case where that means was the basis for a first degree murder conviction. Eleven of the twelve felonies listed in section 189 (all except carjacking, which was added in 1996) are also special circumstances. (See Pen. Code § 190.2, subds. (a)(17)(i), (a)(17)(iii), (a)(17)(v), (a)(17)(vii), (a)(17)(viii).)
The only intentional first degree murders not expressly qualifying for the death penalty are those where the first degree murder is established by proof of premeditation and deliberation. Some such murders are capital murders because the defendant committed another murder (Pen. Code § 190.2, subds. (a)(2), (a)(3)), the defendant acted with a particular motive (Pen. Code § 190.2, subds. (a)(1), (a)(5), (a)(16)) or the defendant killed a particular victim (Pen. Code § 190.2, subds. (a)(7) – (a)(13)). Virtually all of the remaining premeditated murders also would be capital murders because, by definition, most premeditated murders are done while the defendant is lying in wait. (Pen.Code § 190.2, subd. (a)(15). [Footnote 13]
Lying in wait is established if the defendant: (1) concealed his purpose to kill the victim, (2) watched and waited for an opportune time to act and (3) immediately thereafter launched a surprise attack on the victim from a position of advantage. (People v. Morales (1989) 48 Cal.3d 527, 557, cert. den. (1989) 493 U.S. 984 [107 L.Ed.2d 520, 110 S.Ct. 520].) The second element — watching and waiting — adds nothing to premeditation and deliberation since the duration of the watching and waiting need only be “such as to show a state of mind equivalent to premeditation or deliberation.” (People v. Edelbacher, supra, 47 Cal.3d at p. 1021 [emphasis omitted].) As for the other two elements, it will be a rare premeditated murder — i.e., “as a result of careful thought and weighing of considerations . . . carried on coolly and steadily, [especially] according to a preconceived design” (People v. Bender, supra, 27 Cal.2d at p. 183) — where the defendant reveals his purpose in advance or fails to try to take the victim from a position of advantage. As Justice Mosk has said:
“[The lying-in-wait special circumstance] is so broad in scope as to embrace virtually all intentional killings. Almost always the perpetrator waits, watches, and conceals his true purpose and intent before attacking his victim; almost never does he happen on his victim and immediately mount his attack with a declaration of his bloody aim.”
(People v. Morales, supra at p. 575 [dis. opn. of Mosk, J.]; see also People v. Ceja (1993) 4 Cal.4th 1134, 1147 [conc. opn. of Kennard, J.].) In sum, while there will be occasional premeditated murders not done with any of the other listed means or during the listed felonies, [Footnote 14] it would appear that the overwhelming majority of intentional first degree murderers are death eligible.
The situation is similar with regard to unintentional first degree murders. Since an unintentional killing cannot be done with premeditation and deliberation, virtually all unintentional first degree murders are such because of the first degree felony-murder rule, and, even an unintentional killing during one of the listed felonies makes the actual killer death eligible. While there are occasional unintentional first degree murders based on the listed means [Footnote 15] or based on vicarious liability for a felony-murder [Footnote 16] — neither of which situations invokes the death penalty — such prosecutions are rare in comparison with ordinary felony-murders.
It is apparent not only that, definitionally, most first degree murders are capital murders, but also that most murders in California are first degree murders. [Footnote 17] Most murders are first degree murders primarily because of the broad interpretation of lying in wait (discussed above) and because of the felony-murder rule. The expansive sweep of the felony-murder rule is a product of three factors. First, the felony-murder rule applies to the most common felonies resulting in death, particularly robbery and burglary, [Footnote 18] crimes which are defined exceedingly broadly by statute and court decision. With regard to robbery, the courts have given the broadest interpretation to the “force or fear” element [Footnote 19] and the “immediate presence” element. [Footnote 20] With regard to burglary, California makes any (even minimal) entry [Footnote 21] into virtually any enclosed space [Footnote 22] with the intent to commit any felony or theft [Footnote 23] a burglary. (Pen. Code § 459.) [Footnote 24] Second, the felony-murder rule applies to killings occurring even after completion of the felony, if the killing occurs during an escape [Footnote 25] or as a “natural and probable consequence” of the felony. [Footnote 26] Third, the felony-murder rule is not limited in its application by normal rules of causation [Footnote 27] and applies to altogether accidental and unforeseeable deaths:
“[F]irst degree felony murder encompasses a far wider range of individual culpability than deliberate and premeditated murder. It includes not only the latter, but also a variety of unintended homicides resulting from reckless behavior, or ordinary negligence, or pure accident; it embraces both calculated conduct and acts committed in panic or rage, or under the dominion of mental illness, drugs, or alcohol; and it condemns alike consequences that are highly probable, conceivably possible, or wholly unforeseeable.”
(People v. Dillon (1983) 34 Cal.3d 441, 477.)
B. Penal Code Section 190.2 in Practice Does Not Narrow The Class of Death Eligible Murders.
The breadth of section 190.2 is more than just theoretical. An exhaustive analysis by Professor Shatz confirms what is apparent from the face of the statute — section 190.2 performs no real narrowing function. [Footnote 28]
California’s statutory scheme violates the Eighth Amendment in practice because it fails adequately to narrow the class of offenders eligible for the death penalty. This failure, reflected in the data set forth in Professor Shatz’s declaration, manifests itself in two ways. First, there is a nearly complete overlap between the definitions of first-degree murder and the criteria for death eligibility; the vast majority of first-degree murders are statutorily death-eligible. Second, as a result of the breadth of the death-eligibility criteria, only a relative handful of the statutorily death-eligible class are actually sentenced to dies. Just as in pre-Furman Georgia, there is a de facto “narrowing” that occurs, but the narrowing is determined not by statutory eligibility criteria, but rather by the exercise of essentially unguided discretion by prosecutors and juries. Under California death penalty scheme, as in pre-Furman Georgia, being sentenced to die is akin to be struck by lightning.
In Furman, the Supreme Court, for the first time, invalidated a state’s entire death penalty scheme because it violated the Eighth Amendment. Because each of the justices in the majority wrote his own opinion, the scope of, and the rationale for, the decision was not determined by the case itself. Justices Stewart and White concurrent on the narrowest ground, arguing that the death penalty was unconstitutional because a handful of murderers were arbitrarily singled out for death from the much larger class of murders who were death-eligible. Id. at 309-310 (Stewart, J., concurring), 331-313 (White, J., concurring). In Gregg v. Georgia (1976) 428 U.S. 153, the plurality understood the Stewart and White view to be the “holding” of Furman, id. at 188-189, and in Maynard v. Cartwright, (1988) 486 U.S. 356, a unanimous Court cited to the opinions of Stewart and White as embodying the Furman holding. Id. at 362. See also Walton v. Arizona (1990) 497 U.S. 639, 658-659 (Scalia, J., concurring). At the time of the decision in Furman, the evidence before the court established, and the justices understood, that approximately 15 to 20 percent of those convicted of capital murder were actually sentenced to death. Chief Justice Burger so stated for the four dissenters, 408 U.S., at 386 n.11, and Justice Stewart relied on Justice Burger’s statistics when he said: “[I]t is equally clear that these sentences are ‘unusual’ in the sense that the penalty of death is infrequently imposed for murder….” 408 U.S. at 309 n.10. [Footnote 29] Thus, while Justices Stewart and White did not address precisely what percentage of statutorily death-eligible defendants would have to receive death sentences in order to eliminate the constitutionally unacceptable risk of arbitrary capital sentencing, Furman, at a minimum, must be understood to have held that any death penalty scheme under which less than 15 to 20 percent of statutorily death-eligible defendants are sentenced to death permits too great a risk of arbitrariness to satisfy the Eighth Amendment.
In order to meet the concerns of Furman, the states were required to genuinely narrow, by rational and objective criteria, the class of murders eligible for the death penalty:
Our cases indicate, then, that statutory aggravating circumstances play a constitutionally necessary function at the state of legislative definition: they circumscribe the class of persons eligible for the death penalty.
Zant v. Stephens (1983) 462 U.S. 862, 878. It was the Court’s understanding that , as the class of death-eligible murderers was narrowed, the percentage of those in the class receiving the death penalty would go up and the risk of arbitrary imposition of the death penalty would correspondingly decline.
As the types of murders for which the death penalty may be impose become more narrowly defined and are limited to those which are particularly serious or for which the death penalty is peculiarly appropriate…it becomes reasonable to expect that juries — even given discretion not to impose the death penalty — will impose the death penalty in a substantial portion of the cases so defined. If they do, it can no longer be said that the penalty is being imposed wantonly and freakishly or so infrequently that is loses its usefulness as a sentencing device.
Gregg v. Georgia, (1976) 428 U.S. 153, 222 (White, J., concurring).
States could accomplish this statutory narrowing in one of two ways: by very narrowly redefining capital murder to exclude a substantial proportion of traditional first-degree murders [Footnote 30] or, in states (like California) with broad definitions of first-degree murder (and in the few states with no degrees of murder), by the use of statutory-aggravating circumstances. To meet this constitutional narrowing requirement, the aggravating circumstances (“special circumstances” in California) had to “genuinely narrow”the class eligible for the death penalty, Zant v. Stephens, (1983) 462 U.S. 862, 877, reducing that class to less than a majority, Wade v. Calderon, (9th Cir. 1994) 29 F.3d 1312, 1319, cert. denied, __U.S.__, 115 S.Ct. 923, of pre-Furman death-eligible murders.
As professor Shatz’s study shows, the California scheme found in Penal Code section 190.2 does not come close to satisfying Furman. According to Department of Justice statistics, an average of 8.2 to 11.8 percent of convicted first-degree murderers in California are sentenced to death. (See Exhibit A, ¶ 6.) Professor Shatz examined the facts of 306 murder cases in which there were published appellate opinions and of 279 non-death murder cases in which there were unpublished opinions. He also examined 63 non-death murder cases in which there was no appeal, including 20 such cases from San Francisco. He concluded that the overwhelming majority (at least 84 percent of first-degree murderers are statutorily death-eligible. [Footnote 31] (See Exhibit A, ¶ 33.) If that conclusion is correct the special circumstances cited in section 190.2 do not narrow the death-eligible class to something less than the majority of first-degree murders. In fact, if at least 84 percent of first-degree murderers are statutorily death-eligible, the death penalty is being imposed on no more than 9.8 to 14.0 percent of death-eligible first-degree murderers. That percentage is substantially lower than the percentage which the Court, in Furman, found so low as to violate the Eighth Amendment. (See Exhibit A, ¶ 35.)
Very recently, in Loving v. United States (1996) 116 S.Ct. 1737, 1742, the Court cited Furman in support of a ruling that a death penalty statute which restricted death-eligibility to only premeditated and felony murders “does not narrow the death-eligible class in a way consistent with our cases.” A statute like California’s which permits death-eligibility for virtually all first degree murderers is certainly no less violative of the Eighth Amendment.
C. Conclusion.
In Bacigalupo, the Supreme Court upheld the California death penalty scheme on the assumption that section 190.2 served the constitutionally required function of defining “some narrowing principle” providing an objective basis for distinguishing the few cases in which the death penalty is imposed from the many in which it is not and thus “strictly confining” the class of death eligible murderers. (People v. Bacigalupo, supra, 6 Cal.4th at pp. 465-468.) It is abundantly clear that the section serves no such function. The vice of the California scheme is not that any one of the special circumstances taken alone is unconstitutional — each arguably identifies a subclass of all first degree murderers more deserving of the death penalty than other members of the class. The vice is that, taken together, the special circumstances cover virtually all first degree murders (and a substantial majority of all murderers), and, thus, they perform no narrowing function at all.
The basic concern in Furman was that when a state fails to place any objective limits on the imposition of the death penalty, it will necessarily be imposed in a random and unpredictable fashion, in violation of the Eighth Amendment:
“These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted of rapes and murders in 1967 and 1968, many just as reprehensible as these, the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed.”
(Furman v. Georgia, supra, 410 U.S. at pp. 309-310 [footnote omitted].) With the Briggs Initiative, the voters intended to, and did, make virtually all first degree murderers death eligible and thereby made the actual imposition of the death penalty on the few who receive that sentence cruel and unusual in violation of both the Eighth Amendment and article I, section 17 of the California Constitution. For this reason, defendant JOHN DOE asks this Court to bar the prosecutor from seeking the death penalty in this case.
DATED: January 17, 1997
Respectfully submitted,
____________________________
MICHAEL N. BURT
Deputy Public Defender
MOTION FOOTNOTES:
Footnote 1: The term “Eighth Amendment” is used herein to also base a claim on Article I, Sec. 17 of the California Constitution. (Cf. People v. Mincey (1992) 2 Cal.4th 408, 476.)
Footnote 2: These narrowing factors which a jury must find to make a murderer death-eligible are often denominated “aggravating circumstances” or “aggravating factors” in other states. (See People v. Bacigalupo, supra, at 468.) To avoid confusion with California’s “aggravating factors” (Pen. Code § 190.3), they will be referred to throughout as “narrowing factors.”
Footnote 3: A statutory scheme which failed to “genuinely narrow” the class of murderers who were death eligible, would not only violate the Eighth Amendment, but would also violate due process because it would leave to the complete discretion of the prosecutor to choose the few defendants as to whom the death penalty would be sought. As the Supreme Court has explained:
“Where the legislature fails to provide … minimal guidelines, a criminal statute may permit “a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections.”
(Kolender v. Lawson (1983) 461 U.S. 352, 358 [75 L.Ed.2d 903, 103 S.Ct. 1855], quoting Smith v. Goguen (1974) 415 U.S. 566, 575 [39 L.Ed.2d 605, 94 S.Ct. 1242] [emphasis added].) By contrast, if prosecutorial discretion is limited by constitutional narrowing factors, exercise of that discretion will not raise due process concerns.
“[O]ne sentenced to death under a properly channeled death penalty scheme cannot prove a constitutional violation by showing that other persons whose crimes were superficially similar did not receive the death penalty. The same reasoning applies to the prosecutor’s decision to pursue or withhold capital charges at the outset.”
(People v. Keenan (1988) 46 Cal.3d 478, 506, cert. den. (1989) 490 U.S. 1012 [104 L.Ed.2d 169, 109 S.Ct. 1656] [citation omitted and emphasis added].)
Footnote 4: The Court said: “By requiring the jury to find at least one special circumstance beyond a reasonable doubt, the statute limits the death sentence to a small subclass of capital-eligible cases.” (Pulley v. Harris (1984) 465 U.S. 37, 53 [79 L.Ed.2d 29, 104 S.Ct. 871].)
Footnote 5: The Supreme Court also had left open the constitutional question. (See People v. Green, supra, 27 Cal.3d at p. 49.)
Footnote 6: This goal of the voters was plainly unconstitutional. Nevertheless, the Supreme Court has repeatedly held that election ballot arguments are entitled to great weight in interpreting statutes. (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 740 fn. 14; Long Beach City Employees Assn. v. City of Long Beach (1986) 41 Cal.3d 937, 943 fn. 5.)
Footnote 7: Two additional special circumstances (mayhem and rape by foreign object) were added by Initiative Measure (Proposition 115) in 1990. (See Yoshisato v. Superior Court (1992) 2 Cal.4th 978, 985.) Three more special circumstances (carjacking, killing a juror, and drive-by shooting were added by Initiative Measure (Propositions 195, 196) in 1996.
Footnote 8: See, e.g., People v. Superior Court (Engert) (1982) 31 Cal.3d 797 (holding unconstitutional subsection (a)(14) [“heinous, atrocious, or cruel”]); People v. Coleman (1988) 46 Cal.3d 749, cert. den. (1989) 489 U.S. 1100 [103 L.Ed.2d 943, 109 S.Ct. 1578] (upholding subdivision (a)(17) [felony-murder]); People v. Edelbacher (1989) 47 Cal.3d 983 (upholding subdivision (a)(15) [“lying in wait”]); People v. Raley, supra, 2 Cal.4th 870 (upholding (a)(18) [“torture”]).
Footnote 9: In Tuilaepa v. California (1994) ___ U.S. ___ [129 L.Ed.2d 750, 114 S.Ct. 2630], decided last term, Justice Blackmun emphasized that the Court has never given the California system “a clean bill of health.” (114 S.Ct. at p. 2646, dis. opn.)
“[T]he Court’s opinion says nothing about the constitutional adequacy of California’s eligibility process, which subjects a defendant to the death penalty if he is convicted of first-degree murder and the jury finds the existence of one “special circumstance. By creating nearly 20 such special circumstances, California creates an extraordinarily large death pool. Because petitioners mount no challenge to these circumstances, the Court is not called on to determine that they collectively perform sufficient, meaningful narrowing.”
(Id. [footnote omitted]; see also, id. at 2641, Stevens, J. concurring in the judgment.)
Footnote 10: Overall comparisons of death penalty statutes between states are necessarily imprecise, because of the different combinations of narrowing circumstances in the various statutes, because of differences in statutory language used to identify the particular circumstances and because of differences in courts’ interpretation of the circumstances. Nevertheless, the sheer number of special circumstances, the breadth of definition or interpretation of the various circumstances, the frequency of occurrence of the circumstances in actual murder cases and the existence of certain collateral doctrines, (e.g., that the various felony-murder special circumstances apply even to unintentional and unforeseeable killings) set California apart from all other states.
Footnote 11: Throughout this discussion, defendant refers to sections 189 and 190.2, as they appeared prior to 1990. In 1990, Proposition 115 amended both sections to further broaden their coverage. Five additional felonies were added to the felony-murder provisions of section 189, and section 190.2 was amended to broaden several of the special circumstances, to add two additional felony special circumstances and to expand the circumstances in which accomplices would be death-eligible. The amendments made congruent the felony-murder provisions of section 189 and the felony special circumstances in section 190.2. This is the statute under which Mr. Doe stands accused.
Footnote 12: There are some slight differences in wording having no substantive effect.
Footnote 13: The existence of the lying in wait special circumstance contributes to making the California statute far more sweeping than those in the other death penalty states. Only three of the other 35 death penalty states list lying in wait as one of the narrowing circumstances. (See Colorado Revised Stats. § 16-11-103(5)(f); Indiana Code 35-50-2-9(b)(3); and Montana Code 46-18-303(4).) Further, Indiana applies a much narrower version of lying in wait, requiring concealment of the person (Matheney v. State (Ind. 1992) 583 N.E.2d 1202, 1208, cert. den. (1992) ___ U.S. ___ [119 L.Ed.2d 238, 112 S.Ct. 2320]), and it appears that Colorado has never applied its lying in wait circumstance at all.
Footnote 14: See, e.g., People v. Beltran (1989) 210 Cal.App.3d 1295 (defendant’s decision to kill apparently made after victim already being held at gunpoint).
Footnote 15: See, e.g., People v. Laws (1993) 12 Cal.App.4th 786, 795-796 (defendant lay in wait to assault the victim and killed her by accident). However, some such unintentional killings can make the defendant death eligible. In People v. Morse (1992) 2 Cal.App.4th 620, 652, 654-655, after the defendant was arrested for possession of an anti-personnel bomb, two police officers were killed attempting to dismantle the bomb. Although the court overturned a first degree murder conviction based on the felony-murder rule (since reckless possession of bomb is not one of the listed felonies), it acknowledged that defendant could have been convicted of first degree murder on an implied malice theory for killing with a bomb. Defendant would then have been death eligible because of the multiple murder. (See Pen. Code § 190.2(a)(3).)
Footnote 16: See, e.g., People v. Thompson (1992) 7 Cal.App.4th 1966, 1969-1970.
Footnote 17: The constitutionally required narrowing function might be served by a sufficiently narrow definition of the capital offense, but this is not the California scheme. (People v. Bacigalupo, supra, 6 Cal.4th at pp. 465-466, 468.)
Footnote 18: Among the other 35 death penalty states, eleven do not make felony-murder robbery a narrowing circumstance, and eleven do not make felony-murder burglary a narrowing circumstance, and several others only apply the narrowing circumstance when the killing is intentional. (See Colorado Revised Stats. § 16-11-103(5)(g); Texas Pen. Code § 19.03(a)(2); and Wyoming Stats. 6-2-102(h)(xii).)
Footnote 19: See People v. Mungia (1991) 234 Cal.App.3d 1703 (forceful pursesnatch).
Footnote 20: See People v. Webster (1991) 54 Cal.3d 411, 440-441, cert. den. (1992) ___ U.S. ___ [118 L.Ed.2d 431, 112 S.Ct. 1772] (property taken was one-quarter of a mile away from victim).
Footnote 21: See People v. Ravenscroft (1988) 198 Cal.App.3d 639 (use of ATM card is entry into bank).
Footnote 22: See People v. McCormack (1991) 234 Cal.App.3d 253 (going from one room to another within a house is an entry).
Footnote 23: See People v. Salemme (1992) 2 Cal.App.4th 775 (entry to sell fraudulent securities is a burglary).
Footnote 24: It does not appear that any of the other twenty-four states listing burglary as a narrowing circumstance would apply it to as many situations.
Footnote 25: See People v. Cooper (1991) 53 Cal.3d 1158, 1164-1165.
Footnote 26: See People v. Birden (1986) 179 Cal.App.3d 1020, 1024-1025.
Footnote 27: See People v. Johnson (1992) 5 Cal.App.4th 552, 561.
Footnote 28: See Exhibit A.
Footnote 29: In Gregg, the plurality reiterated this understanding: “It has been estimated that before Furman less than 20% of those convicted of murder were sentenced to death in those States that authorized capital punishment.” 428 U.S. at 182 n.26, (citing Woodson v. North Carolina, 428 U.S. 280, 295-96 n.31).
The pre-Furman experience in California was consistent with the Court’s understanding. Evidence before the Court for the years 1964, 1967 and 1969 indicated that approximately 16% of California’s first degree murderers were being sentenced to death. Aikens v. California, (1972) 406 U.S., 813 (Brief for Petitioner, Appendix F at 4f-5f).
Footnote 30: This was the route taken by Louisiana and approved by the Supreme Court in Lowenfield v. Phelps (1988) 484 U.S. 231.
Footnote 31: Notably, former Justice Broussard of the California Supreme Court reached this same conclusion without benefit of a formal survey: “California’s 1978 statute…sweeps so broadly that most murders are subject to the death penalty, and only a few are excluded.” People v. Adcox (1988) 47 Cal.3d 207, 275, cert. denied, (1990) 494 U.S. 1038. (Broussard, J., concurring).
EXHIBIT A
DECLARATION OF STEVEN F. SHATZ
STEVEN F. SHATZ declares as follows:
1. I am the Philip and Muriel Barnett Professor of Trial Advocacy at the University of San Francisco School of Law, where I have been employed on a full-time basis since 1972. During that time, I have regularly taught the required courses in Criminal Law and Criminal Procedure at U.S.F., and, in 1993 and 1994, I was a Lecturer at Boalt Hall, teaching Criminal Law. I practiced criminal law in California before joining the faculty at U.S.F., and, when I joined the faculty, I was the co-director of the U.S.F. Criminal Law Clinic, where I supervised -students handling trial court criminal cases. During the period 1986-92, I was the director of the U.S.F. Law Clinic, the successor to the Criminal Law Clinic and supervised students handling criminal appeals. In 1991, I was Visiting Professor at Hastings College of Law, where, in addition to teaching a Criminal Practice course, I established Hastings, criminal law clinical program.
2. I have recently completed a study of California murder convictions, specifically focusing on the role played by special circumstances (P.C. 190.2) in defining death-eligibility for persons convicted of first degree murder. I am providing this declaration concerning certain results of that study at the request of counsel for the defendant in People v. John Doe, Superior Court No. 0000.
The Narrowing Requirement
3. The purpose of my inquiry was to determine to what extent the California death penalty scheme satisfies the constitutional requirement of Furman v. Georgia, 408 U.S. 238 (1972) that “death penalty statutes be structured so as to prevent the penalty from being administered in an arbitrary and unpredictable fashion.” California v. Brown, 479 U.S. 538, 541 (1987) (citing Gregg v. Georgia, 428 U.S. 153 (1976) and Furman). That requirement is met only where a state’s statutory scheme operates to “genuinely narrow the class of persons eligible for the death penalty.” Zant v. Stephens, 462 U.S. 862, 877-78 (1983).
4. My conclusions regarding the constitutionality of the California scheme are informed by the fact that, at the time of the decision in Furman, the evidence before the Supreme Court established, and the justices understood, that approximately 15-20%, of those convicted of capital murder were actually being sentenced to death. See Furman, 402 U.S. at 309, n.10 (Op. of Stewart, J.); 402 U.S. at 386, n.11 (Dis. Op. of Burger, C.J.) [Footnote 1] Thus, in Furman, the court held, in effect, that any death penalty scheme under which less than 15-20% of statutorily death-eligible murderers were sentenced to death permitted too great a risk of arbitrariness to satisfy the Eighth Amendment.
5. My inquiry was framed by the understanding that, in California, the special circumstances of Penal Code § 190.2 have been held to perform the constitutionally required “narrowing” function. People v. Bacigalupo, 6 Cal.4th 457, 467-468 (1993) . By way of background, at the time of the homicide in the present case, there were 28 special circumstances making a murderer death-eligible. [Footnote 2] As against those 28 circumstances, there were, under Penal Code §§ 189 and 190.2, only nine fact situations where a defendant could theoretically have been guilty of first degree murder and not have been death-eligible. As against those 28 circumstances, there were, under Penal Code §§ 189 and 190.2, only nine fact situations where a defendant could theoretically have been guilty of first degree murder and not have been death eligible: (1) the murder was committed in conjunction with a carjacking; (2) the murder was by means of a destructive device or explosive that was neither planted, hidden or concealed in any place area, dwelling building or structure, nor mailed or delivered or attempted or caused to be mailed or delivered; (3) the murder was by means of ammunition designed primarily to penetrate metal or armor; (4) :he murder was unintentional and by poison; (5) ::he murder was unintentional and by lying in wait; (6) the murder was unintentional and by torture; (7) the murder was intentional and and perpetrated discharging a firearm from a motor vehicle; (8) the murder was p-premeditated and not committed (a) against a listed victim (e.g.,peace officer, fire fighter,witness), (b) with a listed motive (financial gain, escape from custody or avoidance or arrest, racial or ethnic bias), (c) while the defendant was lying in wait or by any other listed means (poison, torture, destructive or explosive device), (d) while the defendant was engaged in the commission or attempted commission of a listed felony, or (e) by a defendant previously or contemporaneously convicted of murder; (9) the defendant was not the actual killer and did not act with at least reckless indifference as a major participant in a special circumstances felony. [Footnote 3]
Methodology of the Study
6. Pursuant to my request, the California Department of Justice provided me with data on murder convictions in California during the five-year period 1988-92. [Footnote 4] The data was provided with the caveat that it might underreport the number of murder convictions by as much as 30%. According to the data provided, during the five-year period, an average of 600 persons were convicted of murder each year. An average of 282 persons per year (47%) were convicted of first degree murder, with remaining 318 (53%) converted of second degree murder. An average of just over 33 persons per year were sentenced to death. Taking into account the range of possible underreporting of murder convictions, between 8.2% and 11.8% of those convicted of first degree murder were sentenced to death. For the sake of convenience, I use the mid-range figure of 10% for purpose of the calculations set out below.
7. I undertook to survey and Catalogue the underlying fact situations in cases where there was a murder conviction. The study was based primarily on appellate opinions, since they provide the most accessible descriptions of the acts supporting murder convictions. I reviewed published opinions on direct appeal from murder convictions in two ways. I reviewed California case law dating back to 1972 (the date of Furman) to generally determine how frequently murders occurred involving one of the nine theoretical types of first-degree murder that do not, in themselves, support a special circumstance allegation. I also surveyed the fact situations of the 306 published decisions on direct appeals in murder cases for the period 1988-1992.
8. I then surveyed 279 unpublished decisions of the Court of Appeal for the First Appellate District on direct appeal in murder cases for the Deriod 1988-92. These cases were identified through multiple sources, including a list of such cases provided by the Attorney General in his discovery responses in Karis v. Calderon, No. Civ.-S-89-527–LKK-JFM. To the extent any cases were missed, I have no reason to believe that the survey was biased in any direction.
9. To determine whether the fact situations in appealed cases are representative of the facts of murder cases generally, I examined murder conviction casefiles in unappealed cases three counties: Alameda, a mixed urban/suburban/rural county; Kern, a rural county; and San Francisco, an urban county. In each case, the cases examined were filed during the period 1987-92. In the case of Alameda County, the murder conviction casefiles were identified through multiple sources. Although I believe the survey included a substantial majority of murder case filings during the period, not all cases from the period were identifiedand surveyed. In the case of Kern County, the list of murder case filings was obtained through a California Public Records Act request, and I therefore believe the survey encompassed all, or virtually all, cases from the period. In the case of San Francisco County, the list of murder case filings was obtained in the course of discovery in the case of People v. John Doe, No. 00000 (S.F. Muni. Ct.), and I therefore believe the survey encompassed all, or virtually all, cases from the period. To the extent any cases from the three courts were not surjeyed, I have no reason to believe that the survey was biased in any direction.
Published Opinions – First Degree Murder Convictions
10. My general survey of published cases since 1972, demonstrated that all but one of the nine theoretical “non-special-circumstances” fact situations — situations where a defendant could have been guilty of first degree murder and not been death eligible — simply do not result in real life murder convictions:
a. I have not found a single published case in California since l972 where, in the absence of facts which would support a special circumstances finding, a defendant committed a murder incidental to an intended car-jacking; [Footnote 5]
b. I have not found a single published case since 1972 where, in the absence of facts which would support a special circumstances finding, the defendant killed by means of an explosive device that was neither concealed nor delivered;
c. I have not found a single published case since 1972 where, in the absence of facts which would support a special circumstances finding, the defendant killed by means of the knowing use of ammunition designed primarily to penetrate metal or armor;
d. I have not found a single published case since 1972 where, in the absence of facts which would support a special circumstances finding, the defendant unintentionally killed by poison;
e. I have found only one published case since 1972 where, in the absence of facts which would support a special circumstances finding, a defendant committed a firs-degree murder by lying in wait to assault, rather than to kill, his victim;
f. As for unintentional torture murders without facts supporting a special circumstances finding, I have found only three such murders in published cases since 1972.
g. I have not found a single published case since 1972 where, in the absence of facts which would support a special circumstances finding, the defendant killed intentionally by discharging a firearm from a motor vehicle;
h. As for accomplice murders, it appears from the published cases where there is no evidence that the accomplice participatedin the killing or acted with the intent to kill, accomplices are not prosecuted for, or convicted of, first degree murder.
i. The published cases indicate that while premeditated murders without special circumstances occuur and result in murder convictions, they do so very infrequently. In the survey sample, this category constitutes only a small portion of first degree murders. Most premeditated murders are committed with special circumstances since the “lying in wait” special circumstance is established if the murderer (1) concealed his purpose to kill the victim, (2) watched and waited for an opportune time to act and (3) immediately thereafter launched a surprise attack on the victim from a position of advantage, and the “watching and waiting” need only have been long enough to show a state of mind equivalent to premeditation or deliberation. [Footnote 6]
12. The 306 published cases decided in the period 1988-92 were distributed as follows:
157 death judgment cases;
36 first degree murder conviction cases with a specialcircumstance finding;
48 first degree murder conviction cases without a special rcumstances finding;
65 second degree murder coniviction cases.
The distribution of published cases is not representative of murder cases generally because all death judgment cases are automatically appealed, and all decisions in death judgment cases are published.
13. Among the 157 death judgment cases, only once did the California Supreme Court find that the evidence was not sufficient to support at least one special cicrcumstance finding. [Footnote 7]
14. Among the 36 non-death judgment first degree murder cases where the trier of fact found a special circumstance, there was no case where the appellate court found that the evidence was not sufficient to support at least one special circumstance. [Footnote 8]
15. Among the 48 cases involving first degree murder convictions without a special circumstances finding: in 38 cases, there was sufficient evidence to support a finding of at least one special circumstance (i.e. , a reasonable juror could have made such a finding); in 8 cases, there was not sufficient evidence stated to support such a finding; and, in 2 cases, the facts stated in the opinion were insufficient to permit a determination.
16. In sum, disregarding the three cases where insufficient facts were stated in the opinion: in 73 of the 81 non-death judgment first degree murder cases (90%), special circumstances were, or could have been, found.
Unpublished Opinions – First Degree Murder Convictions
17. The 279 unpublished cases surveyed were distributed as follows:
41 first degree murder conviction cases in which a special circumstance was found;
111 first degree murder conviction cases without a special circumstance finding;
127 second degree murder conviction cases.
18. Among the 41 cases where one or more special circumstances were found, only once did the appellate court find that the evidence was not sufficient to support at least one special circumstance finding.
19. Among the 111 cases involving first degree murder convictions without a special circumstance finding: in 81 cases, there was sufficient evidence to support: a finding of at least one special circumstance (i.e., a reasonable juror could have made such a finding); in 20 cases, there was not sufficient evidence to support a special circumstance finding; and, in 10 cases, the facts stated in the opinion were insufficient to permit a determination.
20. In sum, disregarding the ten cases where insufficient facts were provided: in 121 of the 142 first degree murder cases (85%), special circumstances were, or could have been, found.
Juvenile Murderers
21. The class of first degree murderers is narrowed to a class which is statutorily death-eligible not only by the special circumstances of Penal Code § 190.2, but also by § 190.5, which forbids application of the death penalty to anyone under the age of 18 at the time of the commission of the crime.
22. The Department of Justice has been unable to provide information from which it can be determined what percentage of convicted first degree murderers committed murder while under the age of 18. It appears from this survey of published cases, unpublished cases and trial court cases that 2.5 – 3.5% of the non-death judgment first degree murderers were under 18 at the time of the murder. For the purposes of the calculations reported below, the higher figure will be used. [Footnote 9]
Second Degree Murder Convictions
23. In the case of both the published and unpublished decisions, I surveyed not only first degree murder convictions, but also second degree murder convictions. It was my assumption (borne out by the study) that a significant portion of second degree murder convictions are cases where the facts would have supported a first degree murder conviction, but where the prosecutor or factfinder simply exercised discretion to bring in a lesser charge. These cases were surveyed to determine whether Penal Code § 190.2 might in fact have a substantial narrowing effect on first degree murder fact situations (as opposed to only first degree murder convictions), an effect masked by the return of second degree murder convictions.
24. In the published cases, among the 65 second degree murder conviction cases, in 27 of these cases there was sufficient evidence to support conviction of first degree murder (i.e., a reasonable juror could have returned such a verdict). In 22 of these 27 cases (81%), there was also sufficient evidence to support a finding of at least one special circumstance (i.e., a reasonable juror could have made such a finding) . If the 27 second degree murder cases are considered along with the 81 first degree murder cases, in 95 of the 108 non-death judgment cases (88%) where first degree murder was, or could have been, found, special circumstances were, or could have been, found.
25. In the unpublished decisions, among the 127 second degree murder conviction cases, in 66 of these cases there was sufficient evidence to support conviction of first degree murder (i.e., a reasonable juror could have returned such a verdict). In 53 of these 66 cases (80%), there was sufficient evidence to support a f inding of at least one special circumstance (i.e., a reasonable juror could have made such a finding) . If the 66 second degree murder cases are considered along with the 142 first degree murder cases, in 174 of the 208 non-death judgment cases (84%) where first degree murder was, or could have been found, special circumstances were, or could have been, found.
26. While the special circumst:ances would perform a somewhat greater narrowing function on this group of cases (second degree murder conviction cases with facts supportive of first degree murder) , the difference is so small as to support, rather than contradict, the results obtained from analyzing first degree murder conviction cases.
Unappealled Cases
27. Although there was variation among the three counties in the cases surveyed (presumably occasioned by differences in charging and plea bargaining practices), in all three counties, a substantial majority of murder convictions in the three samples were appealed: Alameda (69%) ; Kern (81%) ; San Francisco (80%). In all three counties, virtually all the unappealed murder convictions were the product of pleas (and, presumably, plea bargains): Alameda (97%); Kern (95%); San Francisco (85%).
28. Among the 39 unappealed Alameda County cases, there were 10 first degree murder convictions, 2 with special circumstances findings and 8 without. In all 8 of the latter cases, a special circumstance could have been found. There were 29 second degree murder convictions. In 21 of these cases, there was sufficient evidence to support a first degree murder conviction, and in 18 of the 21, there was also sufficient evidence to support a special circumstance finding.
29. Among the 19 unappealed Kern County cases, there were 6 first degree murder convictions, 1 with a special circumstances finding and 5 without. In 3 of the latter 5 cases, special circumstances could have teen found. There were 13 second degree murder convictions. In 8 of these cases, there was sufficient evidence to support a first degree murder conviction, and, in 6 of the 8, there was also sufficient evidence to support a special circumstance finding.
30. Among the 20 unappealed San Francisco County cases, there were 3 first degree murder convictions, none with a special circumstances finding. In all 3 first-degree murder cases, special circumstances could have been found. There were 17 second degree murder convictions. In 15 of these cases, there was sufficient evidence to supporta first degree murder conviction of first degree murder, and, in 12 of the 15, there was also sufficient evidence to support a special circumstance finding.
31. Combining the cases from the three counties, special circumstances were, or could have been, found in 17 of the 19 (89%,) first degree murder conviction cases. When second degree murder conviction cases are included, special circumstances were, or could have been, found in 53 of 63 cases (84%) of the cases where firstdegree murder was proved, admitted or could have been proved. Again, these results from the unappealed cases are consistent with the results from the appealed cases survey and indicate that the appealed cases may be taken as representative at least for this purpose.
Conclusions
32. The two samples of appellate cases produced slightly different results with regard to the special circumstances/first degree murder conviction overlap: 90% in the published cases (see ¶ 16) and 85% in the unpublished cases (see ¶ 20) . If this variation is not simply random, it mav be explained in one of two ways. On the one hand, it could be that there is a tendency for more egregious cases to become published cases. On the other hand, it may be that, in published cases, the courts set out the facts in more detail (thus revealing the existence of special circumstances), in which case the published cases would more reliably reflect the overlap. [Footnote 10] A comparison of the published and unpublished cases surveys indicates that, during the period covered by the surveys, the courts published their decisions in approximately 10.5% of the non-death first degree murder conviction appeals. Assuming that the different numbers for the two samples represent real differences between the cases and taking a weighted average of the two results, 86% of the non-death judgment first degree murder conviction cases are in fact special circumstances cases.
33. To measure the narrowing effect of the special circumstances, death judgment cases, which constitute 10% of firstdegree cases (see ¶ 6) and in which special circumstances are upheld more than 99% of the time (see ¶ 13), must be included. Combining the percentages for non-death and death judgment cases weighted according to the frequency of death judgments, 87% of all first degree murder conviction cases are in fact special circumstances cases. Taking account of the fact that 3.5% of non-death judgment first degree nurderers are juveniles and not deatheligible (see ¶ 22), 84% of first degree murderers are statutorily death-eligible.
34. Since 10% of first degree murderers are in fact sentenced to death (see ¶ 6), just under 12% of first-degree murderers who are statutorily death-eligible are being sentenced to death.
35. A statutory scheme in which 84% of first degree murderers are deatheligible does not “genuinely narrow” (see Wade v.Calderon, 29 F.3d 1312, 1319 (9th C4ir. 1994), cert. denied, ___ U.S. ____, 115 S. Ct. 923) , and, only 12% of those statutorily eligible are sentenced to death, the scheme is more arbitrary than those in existence at the time of Furman, and is therefore in violation of the Eighth Amendment.
I declare under the penalty of perjury under the laws of the State of California and the United States of America that I have read the foregoing declaration, and it is true and correct.
Executed this 17th day of January, 1997, in Berkeley, California.
STEVEN F. SHATZ
SURVEY OF PUBLISHED APPEALS FROM MURDER CONVICTIONS
IN CALIFORNIA (1988-1992)*
(*This survey does not include cases in which rehearing was granted, hearing was granted in the Supreme Court or a superceding opinion was issued. It also does not include cases where the appellate court determined no murder at all was proved.)
Cases in which the court made a special circumstances finding or in which the facts stated would have supported a special circumstances finding are listed in all capitals (e.g., PEOPLE V. HOWARD).
Cases in which the facts stated would not have supported a special circumstances finding are listed in initial capitals (e.g., People v. Morris).
Cases in which the facts stated are insufficient to determine whether special circumstances could have been found or where the conviction is reversed on grounds which leave the facts of the homicide in doubt are set forth in italics (e.g., People v. Ashley).
CAPITAL CASES
PEOPLE V .HOWARD (1988) 44 Cal.3d 375
PEOPLE V. KIMBLE (1988) 44 Cal.3d 480
PEOPLE V. HALE (1988) 44 Cal.3d 531
PEOPLE V. HOVEY (1988) 44 Cal.3d 543
PEOPLE V. RUIZ (1988) 44 Cal.3d 589
PEOPLE V. HENDRICKS (1988) 44 Cal.3d 635
PEOPLE V. MELTON (1988) 44 Cal.3d 713
PEOPLE V. WADE (1988) 44 Cal.3d 975
PEOPLE V. WILLIAMS (1988) 44 Cal.3d 883
PEOPLE V. LUCERO (1988) 44 Cal.3d 1006
PEOPLE V. WILLIAMS (1988) 44 Cal.3d 1127
PEOPLE V. THOMPSON (1988) 45 Cal.3d 86
PEOPLE V. DYER (1988) 45 Cal.3d 26
PEOPLE V. HEISHMAN (1988) 45 Cal.3d 147
PEOPLE V. MILNER (1988) 45 Cal.3d 227
PEOPLE V. POGGI (1988) 45 Cal.3d 306
PEOPLE V. LUCKY (1988) 45 Cal.3d 259
PEOPLE V. ODLE (1988) 45 Cal.3d 386
PEOPLE V. HAMILTON (1988) 45 Cal.3d 351
PEOPLE V. WARREN (1988) 45 Cal.3d 471
PEOPLE V. SIRIPONGS (1988) 45 Cal.3d 548
PEOPLE V. SILVA (1988) 45 Cal.3d 604
PEOPLE V. BABBITT (1988) 45 Cal.3d 660
PEOPLE V. BELMONTES (1988) 45 Cal.3d 744
PEOPLE V. GRANT (1988) 45 Cal.3d 829
PEOPLE V. ROBBINS (1988) 45 Cal.3d 867
PEOPLE V. GUZMAN (1988) 45 Cal.3d 915
PEOPLE V. RICH (1988) 45 Cal.3d 1036
PEOPLE V. AINSWORTH (1988) 45 Cal.3d 984
PEOPLE V. WILLIAMS (1988) 45 Cal.3d 1268
PEOPLE V. BUNYARD (1988) 45 Cal.3d 1189
People V. Morris (1988) 46 Cal.3D 1
PEOPLE V. HAMILTON (1988) 46 Cal.3d 123
PEOPLE V. MCLAIN (1988) 46 Cal.3d 97
PEOPLE V. BOYDE (1988) 46 Cal.3d 212
PEOPLE V. MCDOWELL (1988) 46 Cal.3d 551
PEOPLE V. KEENAN (1988) 46 Cal.3d 478
PEOPLE V. COLEMAN (1988) 46 Cal.3d 749
PEOPLE V. CRANDELL (1988) 46 Cal.3d 833
PEOPLE V. JENNINGS (1988) 46 Cal.3d 963
PEOPLE V. BEAN (1988) 46 Cal.3d 919
PEOPLE V. GRIFFIN (1988) 46 Cal.3d 1011
PEOPLE V. CARO (1988) 46 Cal.3d 1035
PEOPLE V. MOORE (I988) 47 Cal.3d 63
PEOPLE V. MALONE (1988) 47 Cal.3d 1
PEOPLE V. ADCOX (1988) 47 Cal.3d 207
PEOPLE V. HERNANDEZ (1988) 47 Cal.3d 315
PEOPLE V. JOHNSON (1988) 47 Cal.3d 576
PEOPLE V. WALKER (1988) 47 Cal.3d 605
PEOPLE V. GARRISON (1989) 47 Cal.3d 746
PEOPLE V. BONIN (1989) 47 Cal.3d 808
PEOPLE V. FARMER (1989) 47 Cal.3d 888
PEOPLE V. EDELBACHER (1989) 47 Cal.3d 983
PEOPLE V. HARRIS (1989) 47 Cal.3d 1047
PEOPLE V. JOHNSON (1989) 47 Cal.3d 1194
PEOPLE V. COLEMAN (1989) 48 Cal.3d 112
PEOPLE V. BOYER (1989) 48 Cal.3d 247
PEOPLE V. MORALES (1989) 48 Cal.3d 527
PEOPLE V. BONILLAS (1989) 48 Cal.3d 757
PEOPLE V. BURTON (1989) 48 Cal.3d 843
PEOPLE V. ALLISON (l989) 48 Cal.3d 879
PEOPLE V. SHELDON (1989) 48 Cal.3d 935
PEOPLE V. BITTAKER (1989) 48 Cal.3d 1046
PEOPLE V. WILLIAMS (1989) 48 Cal.3d 1112
PEOPLE V. BLOOM (1989) 48 Cal.3d 1194
PEOPLE V. HAMILTON (1989) 48 Cal.3d 1142
PEOPLE V. ANDREWS (1989) 49 Cal.3d 200
PEOPLE V. CARRERA (1989) 49 Cal.3d 291
PEOPLE V. BELL (1989) 49 Cal.3d 502
PEOPLE V. HUNTER (1989) 49 Cal.3d 957
PEOPLE V. LANG (1989) 49 Cal.3d 991
PEOPLE V. JACKSON (1939) 49 Cal.3d 1170
PEOPLE V. THOMPSON (1990) 50 Cal.3d 134
PEOPLE V. LEWIS (1990) 50 Cal.3d 262
PEOPLE V. DOUGLAS (1990) 50 Cal.3d 468
PEOPLE V. CLARK (1990) 50 Cal.3d 583
PEOPLE V. TURNER (1990) 50 Cal.3d 668
PEOPLE V. MATTSON (1990) 50 Cal.3d 826
PEOPLE V. MARSHALL (1990) 50 Cal.3d 907
PEOPLE V. MILLER (1990) 50 Cal.3d 954
PEOPLE V. HOLLOWAY (1990) 50 Cal.3d lo98
PEOPLE V. RAMIREZ (1990) 50 Cal.3d 1158
PEOPLE V. GORDON (1990) 50 Cal.3d 1223
PEOPLE V. STANKEWITZ (1990) 51 Cal.3d 72
PEOPLE V. SANDERS (1990) 51 Cal.3d 471
PEOPLE V. MEDINA (1990) 51 Cal.3d 870
PEOPLE V. KELLY (1990) 51 Cal.3d 931
PEOPLE V. GONZALEZ (1990) 51 Cal.3d 1179
PEOPLE V. GALLEGO (1990) 52 Cal.3d 115
PEOPLE V. WRIGHT (1990) 52 Cal.3d 367
PEOPLE V. ANDERSON (1990) 52 Cal.3d 453
PEOPLE V. HAYES (1990) 52 Cal.3d 577
PEOPLE V. KAURISH (1990) 52 Cal.3d 648
PEOPLE V. BENSON (1990) 52 Cal.3d 754
PEOPLE V. TAYLOR (1990) 52 Cal.3d 719
PEOPLE V. DANIELS (1991) 52 Cal.3d 815
PEOPLE V. MASON (1991) 52 Cal.3d 909
PEOPLE V. PENSINGER (1991) 52 Cal.3d 1210
PEOPLE V. BEARDSLEE (1991) 53 Cal.3d 68, 53 Cal.3d 1179A
PEOPLE V. MORRIS (1991) 53 Cal.3d 152
PEOPLE V. JENNINGS (1991) 53 Cal.3d 334
PEOPLE V. DEERE (1991) 53 Cal.3d 705
PEOPLE V. WHARTON (1991) 53 Ca”L.3d 522
PEOPLE V. FRIERSON (1991) 53 Cal.3d 730
PEOPLE V. COX (1991) 53 Cal.3d 618
PEOPLE V. COOPER (1991) 53 Cal.3d 771
PEOPLE V. DUNCAN (1991) 53 Cal.3d 955
PEOPLE V. JONES (1991) 53 Cal.3d 1115
PEOPLE V. SULLY (1991) 53 Cal.3d 1195
PEOPLE V. MICKLE (1991) 54 Cal.3d 140
PEOPLE V. WEBSTER (1991) 54 Cal.3d 411
PEOPLE V. NICOLAUS (1991) 54 Cal.3d 551
PEOPLE V. MICKEY (1991) 54 Cal.3d 612
PEOPLE V. FUENTES (1991) 54 Cal.3d 707
PEOPLE V. EDWARDS (1991) 54 Cal.3d 787
PEOPLE V. ASHMUS (1991) 54 Cal.3d 932
PEOPLE V. BACIGALUPO (1991) 1 Cal.4th 103
PEOPLE V. FIERRO (1991) 1 Cal.4th 173
PEOPLE V. BREAUX (1991) 1 Cal.4th 281
PEOPLE V. PRICE (1991) 1 Cal.4th 324
PEOPLE V. KELLY (1992) 1 Cal.4th 495
PEOPLE V. MARQUEZ (1992) 1 Cal.4th 553
PEOPLE V. PINHOLSTER (1992) 1 Cal.4th 865
PEOPLE V. MITCHAM (1992) 1 Cal.4th 1027
PEOPLE V. HOWARD (1992) 1 Cal.4th 1132
PEOPLE V. VISCIOTTI (1992) 2 Cal.4th 1
PEOPLE V. HARDY (1992) 2 Cal.4th 86
PEOPLE V. ROBERTS (1992) 2 Cal.4th 271
PEOPLE V. MINCEY (1992) 2 Cal.4th 408
PEOPLE V. THOMAS (1992) 2 Cal.4th 489
PEOPLE V. CLAIR (1992) 2 Cal.4th 629
PEOPLE V. LIVADITIS (1992) 2 Cal.4th 759
PEOPLE V. FAUBER (1992) 2 Cal.4th 792
PEOPLE V. RALEY (1992) 2 Cal.4th 870
PEOPLE V. DANIELSON (1992) 3 Cal.4th 691
PEOPLE V. MCPETERS (1992) 2 Cal.4th 1148
PEOPLE V. DESANTIS (1992) 2 Cal.4th 1198
PEOPLE V. CLARK (1992) 3 Cal.4th 41
PEOPLE V. PRIDE (1992) 3 Cal.4th 195
PEOPLE V. DIAZ (1992) 3 Cal.4th 495
PEOPLE V. ESPINOZA (1992) 3 Cal.4th 806
PEOPLE V. WILSON (1992) 3 Cal.4th 926
PEOPLE V. HILL (1992) 3 Cal.4th 959
PEOPLE V. PAYTON (1992) 3 Cal.4th 1050
PEOPLE V. WREST (1992) 3 Cal.4th 1088
PEOPLE V. JOHNSON (1992) 3 Cal.4th 1183
PEOPLE V. HAWTHORNE (1992) 4 Cal.4th 43
PEOPLE V. SANDOVAL (1992) 4 Cal.4th 155
PEOPLE V. ROWLAND (1992) 4 Cal.4th 238
PEOPLE V. PROCTOR (1992) 4 Cal.4th 499
PEOPLE V. TUILAEPA (1992) 4 Cal.4th 569
PEOPLE V. NOGUERA (1992) 4 Cal.4th 599
PEOPLE V. ALCALA (1992) 4 Cal.4th 742
FIRST DEGREE MURDER CASES (NON-CAPITAL)
PEOPLE V. MORRIS (1988) 199 Cal.App.3d 377
PEOPLE V. WELLS (1988) 199 Cal.App.3d 535
PEOPLE V. FRANCIS (1988) 200 Cal.App.3d 579
PEOPLE V. GARCIA (1988) 201 Cal.App.3d 324
PEOPLE V. DOMINGUEZ (1988) 201 Cal.App.3d 345
PEOPLE V. WILLIAMS (1988) 202 Cal.App.3d 835
People v. Marks (1988) 45 Cal.3d 1335
PEOPLE V. PRINCE (1988) 203 Cal.App.3d 848
PEOPLE V. SELLERS (1988) 203 Cal.App.3d 1042
PEOPLE V. STRESS (1988) 205 Cal.App.3d 1259
PEOPLE V. GASTILE (1988) 205 Cal.App.3d 1376
PEOPLE V. RUPE (1989) 206 Cal.App.3d 1537
People v. Roy (1989) 207 Cal.App.3d 642
PEOPLE V. MORGAN (1989) 207 Cal.App.3d 1384
PEOPLE V. HALL (1989) 208 Cal.App.3d 34
PEOPLE V. YORBA (1989) 209 Cal.App.3d 1017
PEOPLE V. BERBERENA (1989) 209 Cal.App.3d 1099
People v. Beltran (1989) 210 Cal.App.3d 1295
PEOPLE V. CORONA (1989) 211 Cal.App.3d 529
PEOPLE V. HARRIS (1989) 211 Cal.App.3d 640
PEOPLE V. EDWARDS (1989) 212 Cal.App.3d 1091
PEOPLE V. SILBERMAN (1989) 212 Cal.App.3d 1099
PEOPLE V. HOLGUIN (1989) 213 Cal.App.3d 1308
PEOPLE V. SMITH (1989) 214 Cal.App.3d 904
PEOPLE V. HANKEY (1989) 215 Cal.App.3d 510
PEOPLE V. CORDERO (1989) 216 Cal.App.3d 275
PEOPLE V. HAYES (1989) 49 Cal.3d 1260
PEOPLE V. SILVERBRAND (1990) 220 Cal.App.3d 1621
PEOPLE V. AGUILAR (1990) 218 Cal.App.3d 1556
People v. Burrows (1990) 220 Cal.App-3d 116
PEOPLE V. KELLEY (1990) 220 Cal.App-3d 1358
PEOPLE V. ROBINSON (1990) 221 Cal.App.3d 1586
People v. Boyd (1990) 222 Cal.App.3d 541
PEOPLE V. NGUYEN (1990) 222 Cal.App.3d 1612
PEOPLE V. CRAWFORD (1990) 224 Cal.App.3d 1
PEOPLE V. BOBO (1990) 229 Cal.App.3d 1417
People v. Denis (1990) 224 Cal.App.3d 563
PEOPLE V. ASAY (1990) 224 Cal.App.3d 608
PEOPLE V. WISELY (1990) 224 Cal.App.3d 939
PEOPLE V. MCLEAD (1990) 225 Cal.App.3d 906
PEOPLE V. HENDERSON (1990) 225 Cal.App.3d 1129
PEOPLE V. SINGER (1990) 226 Cal.App.3d 23
PEOPLE V. ST. JOSEPH (1990) 226 Cal.App.3d 289
PEOPLE V. MONTANO (1991) 226 Cal.App.3d 914
PEOPLE V. MAIER (1991) 226 Cal.App.3d 1670
PEOPLE V. BOLTER (1991) 227 Cal.App.3d 653
PEOPLE V. HARRIS (1991) 227 Cal.App.3d 1223
PEOPLE V. SPEARS (1991) 228 Cal.App.3d 1
PEOPLE V. MORENO (1991) 228 Cal.App.3d 564
PEOPLE V. HARPER (1991) 228 Cal.App.3d 843
PEOPLE V. BARBOSA (1991) 228 Cal.App.3d 1619
PEOPLE V. SANTAMARIA (1991) 229 Cal.App.3d 269
PEOPLE V. SCOTT (1991) 229 Cal.App.3d 707
People v. Moten (1991) 229 Cal.App.3d 1318
PEOPLE V. JACOBO (1991) 230 Cal.App.3d 1416
PEOPLE V. BIVENS (1991) 231 Cal.App.3d 653
PEOPLE V. JOHNSON (1991) 233 Cal.App.3d 425
PEOPLE V. ANDERSON (1991) 233 Cal.App.3d 1646
People v. Jaspal (1991) 234 Cal.App.3d 1446
PEOPLE V. AXELL (1991) 235 Cal.App.3d 836
PEOPLE V. KING (1991) 1 Cal.App.4th 288
PEOPLE V. BALLARD (1991) 1 Cal.App.4th 752
People v. Saille (1991) 54 Cal.3d 1103
People v. Mills (1991) 1 Cal.App.4th 898
PEOPLE V. WEDDLE (1991) 1 Cal.App.4th 1190
PEOPLE V. SIMPSON (1991) 2 Cal.App.4th 228
PEOPLE V. MORSE (1992) 2 Cal.App.4th 620
PEOPLE V. OTTO (1992) 2 Cal.4th 1088
PEOPLE V. PEREZ (1992) 2 Cal.4th 1117
PEOPLE V. FITZPATRICK (1992) 2 Cal.App.4th 1265
PEOPLE V. JOHNSON (1992) 5 Cal.App.4th 552
PEOPLE V. FRYE (1992) 7 Cal.App.4th 1148
People v. Thompson (1992) 7 Cal.App.4th 1966
People v. Woods (1992) 8 Cal.App.4th 1570
PEOPLE V. WHITE (1992) 9 Cal.App.4th 1062
PEOPLE V. WALLACE (1992) 9 Cal.App.4th 1515
PEOPLE V. PIZARRO (1992) 10 Cal.App.4th 57
People v. Scaffidi (1992) 11 Cal.App.4th 145
PEOPLE V. VON VILLAS (1992) 11 Cal.App.4th 175
PEOPLE V. RANGEL (1992) 11 Cal.App.4th 291
PEOPLE V. YOUNG (1992) 11 Cal.App.4th 1299
PEOPLE V. MACK (1992) 11 Cal-App.4th 1466
People v. York (1992) 11 Cal.App.4th 1506
SECOND DEGREE MURDER CASES
People v. Tyson (1988) 197 Cal.App.3d 1275
PEOPLE V. ROSENKRANTZ (1988) 198 Cal.App.3d 1187
PEOPLE V. TREVINO (1988) 200 Cal.App.3d 874
People v. Protopappas (1988) 201 Cal.App.3d 52
People v. Arviso (1988) 201 Cal.App.3d 1055
People v. Heckathorne (1988) 202 Cal.App.3d 458
People v. Davis (1988) 202 Cal.App.3d 1009
People v. Molina (1988) 202 Cal.App.3d 1168
People v. Duesler (1988) 203 Cal.App.3d 273
People v. Kurtzman (1988) 46 Cal.3d 322
People v. Ledesma (1988) 204 Cal.App.3d 682
People v. Stringham (1988) 206 Cal.App.3d 184
People v. Garner (1989) 207 Cal.App.3d 935
People v. Moten (1989) 210 Cal.App.3d 765
People v. Benson (1989) 210 Cal.App.3d 1223
People v. Perez (1989) 212 Cal.App.3d 395
Peonle v. Landry (1989) 212 Cal.App.3d 1428
PeoPle v. Watson (1989) 213 Cal.App.3d 446
People v. Rhodes (1989) 215 Cal.App.3d 470
PEOPLE V. ARIS (1989) 215 Cal.App.3d 1178
People v. Dellinger (1989) 49 Cal.3d 1212
PEOPLE V. ADAMS (1990) 216 Cal.App.3d 1431
PEOPLE V. REMINGTON (1990) 217 Cal.App.3d 423
People v. Baker (1990) 220 Cal.App.3d 574
People v. Ashley (1990) 220 Cal.App.3d 919
People v. Sanders (1990) 221 Cal.App.3d 350
PEOPLE V. URIARTE (1990) 223 Cal.App.3d 192
People v. Bordeaux (1990) 224 Cal.App.3d 573
PEOPLE V. WEST (1990) 224 Cal.App.3d 1283
People v. Ortiz (1990) 51 Cal.3d 975
People v. Murray (1990) 225 Cal.App.3d 734
PEOPLE V. ESHELMAN (1990) 225 Cal.App.3d 1513
People v. Woods (1991) 226 Cal.App.3d 1037
People v. ordonez (1991) 226 Cal.App.3d 1207
PEOPLE V. WEBBER (1991) 228 Cal.App.3d 1146
People v. Cleaves (1991) 229 Cal.App.3d 367
People v. Huynh (1991) 229 Cal.App.3d 1067
PEOPLE V. PEARCH (1991) 229 Cal.App-3d 1282
People v. David (1991) 230 Cal.App.3d 1109
People v. Bowen (1991) 231 Cal.App.3d 783
People v. Alvarado (1991) 232 Cal.App.3d 501
PEOPLE V. DOUGLAS (1991) 234 Cal.App-3d 273
People v. Lee (1991) 234 Cal.App.3d 1214
PEOPLE V. MANRIQUEZ (1991) 235 Cal.App.3d 1614
People v. Jarmon (1992) 2 Cal.App.4th 1345
People v. Nieto Benitez (1992) 4 Cal.4th 91
People v. Manning (1992) 5 Cal.App.4th 88
PEOPLE V. COLEMAN (1992) 5 Cal.App.4th 646
People v. Trimble (1992) 5 Cal.App.4th 1225
People v. Drake (1992) 6 Cal.App.4th 92
People v. Taylor (1992) 6 Cal.App.4th 1084
People v. Truman (1992) 6 Cal.App.4th 1816
PEOPLE V. FLORES (1992) 7 Cal.App.4th 1350
People v. Barney (1992) 8 Cal.App.4th 798
People v. Coleman (1992) 9 Cal.App.4th 493
People v. Ricardi (1992) 9 Cal.App.4th 1427
People v. Evers (1992) 10 Cal.App.4th 588
PEOPLE V. DE LEON (1992) 10 Cal.App.4th 815
PEOPLE V. BLANCO (1992) 10 Cal.App.4th 1167
People v. Echevarria (1992) 11 Cal.App.4th 444
People v. Talamantes (1992) 11 Cal.App.4th 968
People v. Woodward (1992) 4 Cal.4th 376
PEOPLE V. KLVANA (1992) 11 Cal.App.4th 1679
SHATZ DECLARATION (EXHIBIT A) FOOTNOTES:
Footnote 1: The pre-Furman experience in California was consistent with the Court’s understanding concerning the death sentence rate. See Aikens v. California, 406 U.S. 813 (1972) (Brief for Petitioner, Appendix F, pp. 4f-5f).
Footnote 2: A twenty-ninth special circumstance, the “heinous, atrocious, or cruel” special circumstance (Pen. Code § 190.2(a)(14)) was invalidated in People v. Superior Court (Engert) (1982) 31 Cal.3d 797 and was ignored for purposes of this study.
Footnote 3: In this circumstance, the accomplice could not, as a constitutional matter, have received the death penalty. See Tison v. Arizona, 481 U.S. 137 (1987); Enmund v. Florida, 458 U.S. 782 (1982).
Footnote 4: The latest year for which the Department of Justice can currently provide such information is 1992.
Footnote 5: Virtually any car-jacking is a robbery and therefore a special circumstances case.
Footnote 6: See People v. Morales, 48 Cal.3d 527, 557 (1989) , cert. den. 493 U.S. 964; People v. Edelbacher, 47 Cal .3d 983, 1021 (1989) .
Footnote 7: People v. Morris (1988) 46 Cal.3d 1. In one other case, People v. Marks, (1988) 45 Cal.3d 1535, the court reversed the conviction without a statement of the facts of the case.
Footnote 8: Again, in one case, Peoiple v. Burrows (1990) 220 Cal.App.3d 116, the court reversed the conviction without a statement of the facts of the case.
Footnote 9: This is the figure more favorable to the constitutionality of the scheme.
Footnote 10: In fact, reliance on facts stated in appellate cases probably leads to understatement of the special circumstances/first degree murder conviction overlap in both cases. where the prosecution did not charge special circumstances, the prosecution may not have developed or introduced available evidence which would have proved special circumstances; and, similarly, in cases where special circumstances were not found, an appellate opinion may not address evidence which might have supported such a finding.
JEFF BROWN
>Public Defender
BY: MICHAEL N. BURT
and RANDALL MARTIN
Deputy Public Defenders
555 Seventh Street
San Francisco, California 94103
(415) 553-1671
Attorneys for Defendant
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE CITY AND COUNTY OF SAN FRANCISCO
PEOPLE OF THE STATE OF CALIFORNIA, NO. 160021
Plaintiff,
vs.
JOHN DOE,
Defendant.
_______________________________________/
REPLY TO PEOPLE’S OPPOSITION TO DEFENDANT’S MOTION TO BAR DEATH PENALTY FOR FAILURE TO COMPLY WITH THE EIGHTH AMENDMENT’S NARROWING REQUIREMENT
TO TERENCE HALLINAN, DISTRICT ATTORNEY OF THE CITY AND COUNTY OF SAN FRANCISCO, STATE OF CALIFORNIA; AND TO THE ABOVE-ENTITLED COURT:
PLEASE TAKE NOTICE that on the 21st day of May, at 1:30 p.m., or as soon thereafter as the matter may be heard, in Department 24, defendant JOHN DOE will again move the Court for an order barring the imposition of the death penalty in this case on the grounds that the 1978 death penalty statute, as interpreted and applied, violates the Eighth Amendment to the United States Constitution and its California counterpart.
This motion is based upon this notice, the attached memorandum of points and authorities, the memorandum of points and authorities and exhibits filed as part of the original motion, the pleadings and documents already on file in this case, and the evidence, arguments and authorities presented at the hearing on this motion.
DATED: May 15, 1997.
Respectfully submitted,
MICHAEL N. BURT
RANDALL MARTIN
Deputy Public Defenders
Attorneys for JOHN DOE
By:_________________________________
MICHAEL N. BURT
MEMORANDUM OF POINTS AND AUTHORITIES
I.
DEFENDANT HAS STANDING TO CHALLENGE CALIFORNIA‘S DEATH PENALTY SCHEME AS A WHOLE, NOT JUST AS APPLIED IN HIS CASE
As conceded by the People, it is beyond question that defendant has standing to specifically challenge the special circumstances he stands accused of. (People’s Opposition at 5-6). Further, the People, citing Tison v. Arizona (1987) 481 U.S. 137, 158 and People v. Anderson (1987) 43 Cal.3d 1104, 1147, argue that both special circumstance allegations pending against defendant (Penal Code section 190.2 (a)(17)(i) – murder in the commission of a robbery; and Penal code section 190.2 (a)(17)(vii) – murder in the commission of a burglary) sufficiently circumscribe a narrow class of persons eligible for the death penalty, and that death can be imposed even when the defendant did not intend to kill the victim. (People’s Opposition at 5-6). It is true, as the People contend, that Anderson broadly interpreted the felony murder special circumstance to apply to any actual killer, regardless of his mental state. But this is the problem, not the solution. Under Edmund v. Florida (1982) 458 U.S. 782, 801 and Tison v. Arizona, supra, death eligibility for the actual killer in a felony murder case requires a showing of some culpable mental state. See Reeves v. Hopkins (8th Cir. 1996) 102 F.3d 977, 984 (to impose death on the actual killer in a felony murder case, “the state must necessarily produce some evidence of intent with respect to the killing” [emphasis in original]). By unequivocally rejecting this requirement in Anderson, the California Supreme Court has adopted an unconstitutionally broad interpretation of the very special circumstances at issue in this case. Defendant clearly has standing to raise this Eighth Amendment violation.
Moreover, defendant certainly does have standing to challenge California‘s death penalty statute as a whole based upon the proscriptions of Furman v. Georgia (1972) 408 U.S. 238. In support of their contrary argument, the People cite to United States v. Cheely (9th Cir. 1994) 36 F.3d 1439, 1444 fn. 10. (People’s Opposition at 6). The People’s reliance on Cheely, however, is somewhat peculiar. The Ninth Circuit in Cheely actually affirmed the standing of a capital defendant to raise a Furman challenge, noting:
The Supreme Court has not hesitated under Furman to invalidate capital sentencing schemes challenged by defendants who have been convicted of first-degree murder. Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976); Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976); Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). Even those convicted of heinous crimes, if they face the death penalty, have a constitutional right to be sentenced in the consistent, rational manner prescribed by Furman.
United States v. Cheely (9th Cir. 1994) 36 F.3d 1439, 1444 fn. 11. To hold otherwise on the issue of standing would completely undermine the mandates of Furman, supra, and Gregg v. Georgia (1976) 428 U.S. 153, and prevent any review of a death penalty scheme to determine if it is arbitrary and not narrowing. Thus, this Court should find that defendant does have standing to challenge California‘s death penalty scheme as a whole.
II.
UNDER CALIFORNIA‘S CAPITAL SCHEME, THE EIGHTH AMENDMENT NARROWING REQUIREMENT IS NOT MET BY THE DIFFERENTIATION BETWEEN FIRST DEGREE MURDERERS AND SECOND DEGREE MURDERERS
The People contend that California‘s death penalty scheme conforms to the constitutional narrowing requirement by merely distinguishing between first and second degree murder and, thus, the state could constitutionally make all first degree murderers death-eligible. (People’s Opposition at 7 and fn. 5). This argument is contrary to the California Supreme Court’s interpretation of the State’s death scheme, and United States Supreme Court jurisprudence on the Eighth Amendment’s narrowing requirement.
The Constitution demands that a state’s capital sentencing scheme “genuinely narrow the class of persons eligible for the death penalty.” Zant v. Stephens (1983) 462 U.S. 862, 877. In People v. Bacigalupo (1993) 6 Cal.4th 457, the court explained the role of the constitutional narrowing requirement in the California scheme. The court stated that it is the special circumstances, not the limitation of the death penalty to first degree murderers, which serves to “guide and channel jury discretion by strictly confining the class of offenders eligible for the death penalty.” Id. at 467 (internal quotations omitted). The court then went on to conclude:
Under our death penalty law, therefore, the section 190.2 “special circumstances” perform the same constitutional “narrowing” function as the “aggravating factors” that some of the other states use in their capital sentencing statutes.
Id. at 468. Thus, it is clear that the California Supreme Court has not adopted the People’s interpretation of the death penalty statute as satisfying the Eighth Amendment.
Moreover, where the United States Supreme Court has addressed “failure-to-narrow” challenges to aggravating circumstances, the Court has not acted in accord with the People’s interpretation. Very recently, in Loving v. United States (1996) ___ U.S. ___, 116 S.Ct. 1737, 1742, the Court addressed a military capital punishment scheme which authorized the death penalty for but two of four types of murder specified: premeditated and felony murder were punishable by death, whereas intentional murder without premeditation and murder resulting from wanton and dangerous conduct were not. Contrary to the urging of the government, the Court held that the “statute’s selection of the two types of murder for the death penalty [ ] does not narrow the death-eligible class in a way consistent with our cases.” Id. The Court also stated that the statute’s felony murder provision permitted “death to be imposed for felony murder even if the accused had no intent to kill and even if he did not do the killing himself. The Eighth Amendment does not permit the death penalty to be imposed in those circumstances. Enmund v. Florida, 458 U.S. 782, 801, 102 S.Ct. 3368, 3378-3379, 73 L.Ed.2d 1140 (1982). As a result, additional aggravating factors establishing a higher culpability are necessary to save [the military capital punishment scheme].” Id.
Likewise, if in the case cited by the People to support their proposition, Arave v. Creech (1993) 507 U.S. ___, 113 S.Ct. 1534, the Supreme Court had used the People’s interpretation of the narrowing requirement, the Court would have issued a one-paragraph opinion pointing out that, since Idaho applied the death penalty only to first degree murderers (who are defined similarly in California) and not to those convicted of second degree murder, the Idaho scheme met the constitutional narrowing requirements. The fact that the Court, instead, struggled to decide whether the “utter disregard” aggravating circumstance had a determinate meaning which would allow the sentencer to distinguish among first degree murderers, id. at 1542-43, is another clear indication that the People’s interpretation is wrong. See also Walton v. Arizona (1990) 497 U.S. 639; Maynard v. Cartwright (1988) 486 U.S. 356; Godfrey v. Georgia (1980) 446 U.S. 420.
Clearly, in light of this precedent, California could not make death-eligible all first degree murders (which, as outlined in defendant’s original motion and Professor Shatz’s declaration, make up most of the actual murders in California), for there would be no “principled distinction between the subset of murders for which the sentence of death may be imposed and the majority of murders which are not subject to the death penalty.” Wade v. Calderon (9th Cir. 1994) 29 F.3d 1312, 1319. Moreover, just as in Loving, the felony murder provision of first degree murder (Penal Code section 189), which has been interpreted very broadly (see Defendant’s Motion at 8-9 and People v. Dillion (1983) 34 Cal.3d 441, 447), and includes as underlying felonies robbery or burglary, which have both also been given extremely broad interpretations, would permit the death penalty to be imposed on individuals who had no intent to kill and even if they personally did not do the killing. Thus, it is simply preposterous for the People to assert that California‘s death penalty scheme conforms with the Eighth Amendment’s narrowing requirement (or the Eighth Amendment’s proportionality requirement) merely because the death penalty only applies in the case of first degree murder. No constitutional narrowing is achieved at the level of the degrees of murder, and as demonstrated by defendant here and in his original motion, the special circumstances set forth in Penal Code section 190.2 also do not genuinely narrow the class of persons eligible for the death penalty.
III.
THE PEOPLE’S COMPARISON OF CALIFORNIA‘S DEATH PENALTY SCHEME TO THE SCHEMES OF OTHER STATES IS UNAVAILING
In an attempt to bolster their argument that California’s death scheme is sufficiently narrow, the People compare the California scheme to the schemes of Georgia, Florida and Louisiana, which were reviewed by the United States Supreme Court in Gregg v. Georgia, supra, Proffitt v. Florida (1976) 428 U.S. 242, and Lowenfield v. Phelps (1988) 484 U.S. 231, respectively. For the reasons set forth below, the People’s reliance on these cases is ineffectual.
Both Gregg and Proffitt are inapposite on the issues raised by defendant, because neither of those cases specifically involved an Eighth Amendment narrowing challenge as prescribed by Supreme Court cases, and the Court’s reviews did not address any evidence establishing the ratio of those murders who were death eligible to those who were actually charged or sentenced to die under the death scheme as applied. In fact, both cases at least left open the question that is raised by such a practical challenge to the death penalty statutes. See Gregg, supra, 428 U.S. at 198 and Proffitt, supra, 428 U.S. at 253. Moreover, as demonstrated by Baldus, Woodworth, and Pulaski in their book Equal Justice and the Death Penalty (1990) at page 89, under Georgia‘s current death penalty scheme, about 23% of death-eligible murderers are sentenced to death. This percentage is virtually two times that found in California, and demonstrates that Georgia‘s scheme goes much further than California‘s on the issue of narrowing.
As for the Louisiana death penalty statute reviewed in Lowenfield, it simply is much narrower than, and not comparable to the California scheme, because death-eligibility in Louisiana requires a showing of a specific intent to kill or to inflict great bodily harm in addition to other specific factual circumstances. This is very different than the broad death penalty statute of this State.
California‘s statute gives a broad definition for first degree murder. See Arave, supra, 113 S.Ct. at 1542-43. It also defines 28 special circumstances, making more categories of murder death-eligible than the statutes of other states in which the issue has been addressed. [Footnote 1] Furthermore, the special circumstances duplicate virtually all of the categories of murder except premeditated murder. For example, a murder is classified as first degree if it is committed by explosive, poison, lying in wait or torture. Penal Code section 189. The special circumstances also include murder by concealed or mailed explosive, and intentional murder by poison, lying in wait or torture. Penal Code section 190.2. Similarly, a murder committed during one of the twelve enumerated felonies will support both a first degree murder conviction and a special circumstance. [Footnote 2] A conviction for first degree murder based on one of these methods thus goes a long way toward establishing the corresponding special circumstance that would make the defendant death eligible.
Accordingly, the People’s comparison of California‘s scheme to those found in these other states is of no moment.
IV.
THE PEOPLE’S ATTACKS ON PROFESSOR SHATZ’S STUDY TOTALLY LACK MERIT
Having failed to rebut the legal import of Professor Shatz’s study, the People resort to a scatter-shot attack on the methodology of the study. The short answer to the People’s attacks is that, since the People nowhere dispute Professor Shatz’s conclusions, any concerns about the methodology of the study become irrelevant. The longer answer is that the attacks are substantially misguided.
Professor Shatz is a law professor whose expertise is criminal law. Although he admittedly is not a social scientist, statistician or survey researcher, his study does not depend on elaborate social science research or mathematical techniques aimed at establishing cause-and-effect relationships. (Contrast the Baldus Study relied on by petitioners in McCleskey v. Kemp (1987) 481 U.S. 279). What Professor Shatz has done is to examine several hundred murder conviction cases and categorize them according to whether their facts fall within the special circumstances set forth in the Penal Code section 190.2. In summarizing the results of his categorizations, Professor Shatz has done nothing that the People or this Court could not do. Of course, any attempt to categorize fact situations involves some degree of judgment. But, if, as the People contend, the special circumstances utilized in California are well defined and objective, the categorization of cases is actually very free of subjectivity.
The People’s contention that Professor Shatz dubiously extend his study to second degree murder cases is simply wrong. Professor Shatz’s conclusions were based solely on first degree murder cases, and the second degree murder cases were merely used to verify the conclusions arrived at. (See Shatz Declaration at 11-12).
The People’s attacks on the incompleteness of the study, and the size and character of the sample are all versions of an attack on the representative nature of the cases used. The People offer no theory as to why the facts stated in published opinions statewide or unpublished opinions of the first appellate district would not be representative and, if not representative, why they would favor defendant. By contrast, Professor Shatz has offered reasons why he believes the survey sample was not biased in any direction. (See Shatz Declaration at 5).
The People also argue that Professor Shatz’s study left out cases which did not result in murder convictions for one reason or another, and that the failure to include such cases could have “skew[ed] the statistics.” (People’s Opposition at 15). First, under Furman, this group of cases is irrelevant to a review of the functioning of a death penalty scheme; what must be considered are those who are actually death eligible and those convicted persons who are actually charged or sentenced to death. Second, relevance notwithstanding, evidence that the People’s argument lacks merit can be garnered from the studies and testimony of Dr. Richard Berk. As Dr. Berk found in his analysis of over eight hundred homicide cases filed in San Francisco between 1978 and 1995, for a substantial number of the cases, there is nothing which can be used to predict whether the person is charged with a special circumstance. (Reporter’s Transcript of Murgia Motion Hearing [hereinafter R.T.] at 1620-21). That is, for hundreds of similarly-situated defendants, the decision to charge at least one special circumstance statistically appears to be a coin-flip. Id at 1621.
Dr. Berk further testified that in the case of all defendants with prior murder convictions, only 32% of the individuals with that attribute were charged with a special circumstance allegation, while an astounding 68% were not so charged. (R.T. 1644; Exhibit N). Similarly, 80% of the individuals who committed a contemporaneous felony were not charged with a felony murder special circumstance. (R.T. 1646). Again, with respect to JOHN DOE, only 12% of those individuals with his combination of case characteristics (felony murder, and prior serious felony convictions) were charged with a special circumstance, where as 88% were not so charged. (R.T. 1648).
In Gregg v. Georgia, supra, Justice White expressed the Supreme Court’s hope that the appearance of a lottery-like process would be overcome by the new “guided discretion” of capital statutes like the one conditionally approved in Gregg:
As the types of murderers from which the death penalty may be imposed become more narrowly defined and are limited . . . by reason of the aggravating circumstances requirement, it becomes reasonable to expect that juries — even given discretion not to impose the death penalty — will impose the death penalty in a substantial portion of the cases so defined. If they do, it can no longer be said that the penalty is being imposed wantonly or freakishly.
Gregg, supra, 428 U.S. at 222.
In California, and especially in San Francisco, the types of murderers from which the death penalty may be imposed are broadly defined and virtually unlimited, with the result that prosecutors seek and juries impose death in a tiny fraction of the death-eligible cases. When 80% of individuals who commit felony murder are not even charged with a special circumstance, let alone subject to the death penalty, the felony murder special circumstance provision is not, in any rational and fair system of criminal justice, a constitutionally narrowing factor. And when the utilization of all special circumstance provisions combined produces a system such as that in San Francisco, in which over a period from 1978 to 1995, out of some 840 cases, only six individuals were sentenced to death — three of whom have now been removed from death row by virtue of appeal [Footnote 3] — it can no longer be pretended that, as mandated by Gregg and Furman, the death penalty is being sought and imposed in a substantial portion of the cases defined by narrowly-drawn special circumstances.
CONCLUSION
As is apparent from the text of Penal Code section 190.2, the results of Dr. Berk’s and Professor Shatz’s empirical studies and the People’s failure to cite either contrary empirical evidence or real-life examples, section 190.2 makes virtually all first degree murderers death-eligible. In enacting California’s death penalty law, the voters deliberately did not choose which first degree murderers they thought most deserving of death; rather, they chose to leave that decision to the unfettered discretion of prosecutors and juries, with the predictable consequence that in jurisdictions like San Francisco a death judgment is indeed as wanton and freakish as a random bolt of lightning. That result simply cannot be squared with the requirements of Furman and its progeny.
For the above-reasons, and for all of the other reasons set forth in defendant’s original motion, defendant JOHN DOE respectfully asks this Court to bar the prosecutor from seeking the death penalty in this case.
DATED: May 15, 1997
Respectfully submitted,
____________________________
MICHAEL N. BURT
Deputy Public Defender
REPLY FOOTNOTES:
Footnote 1: See, e.g., Lowenfield, supra, 484 U.S. at 246 (Louisiana: 5 categories); Jurek v. Texas (1976) 428 U.S. 262, 273 (Texas: 5 categories); Adamson v. Ricketts (9th Cir. 1988) 865 F.2d 1011, 1025-26 (Arizona: 9 categories); McKenzie v. Risley (9th Cir. 1988) 842 F.2d 1525, 1539 (Montana: 7 categories); Giarratano v. Procunier (4th Cir 1989) 891 F.2d 483, 489-90 (Virginia: 8 categories); see also Pulley v. Harris (1984) 465 U.S. 37, 51 n. 13 (California’s former death penalty statute: 7 categories).
Footnote 2: Because of the structure of the California death penalty statute, this double use is different from the double use upheld in other cases. In Lowenfield, for example, the Court held that the class of death-eligible defendants was constitutionally narrowed, even though the aggravating factor found at the penalty phase duplicated an element of the capital offense. The relevant statute provided for the requisite narrowing at the guilt phase; thus, the use of the same element at the penalty phase had no effect on the narrowing process. Lowenfield, supra, 484 U.S. at 246; see also Deputy v. Taylor (3rd Cir. 19 F.3d 1485, 1500; but see Johnson v. Dugger (11th Cir. 1991) 932 F.2d 1360, 1368. Under California‘s statute, by contrast, the special circumstance finding is part of the narrowing process.
Footnote 3: As indicated in defendant’s Murgia Motion at page 5, death sentences have been returned in San Francisco against only six individuals who committed murder since 1977: Clifford Bolden, Russell Coleman, John Gzikowski, Gyro Hendricks, Maurice Keenan, and Robert Massie. On March 28, 1997, Russell Coleman became the third person out of this group to have his case reversed on appeal. Only Bolden, Keenan and Massie are still under sentence of death.
