Justice Liu Identifies Defect in California Death Penalty Process
October 20th, 2021

Writing for a unanimous court, Justice Liu’s opinion in People v. McDaniel ____ Cal 5th _____(Aug. 26, 2021, S171393) rejected McDaniel’s arguments concerning the state constitutional and statutory right to jury trial.


However, Justice Liu added a 30-page concurring opinion concerning a related federal constitutional issue based on Apprendi v. New Jersey (2000) 530 U.S. 466:


Our case law has held that the Apprendi rule does not disturb California’s death penalty scheme. Yet our decisions in this area consist of brief analyses that have largely addressed high court opinions one by one as they have appeared on the books. In my view, we have not fully grappled with the analytical underpinnings of the Apprendi rule and the totality of the high court’s 20-year line of decisions. (People v. McDaniel,  supra,____ Cal 5th at ____, concurring opn.)


The CSC has consistantly held that the true finding on a special circumstance at the guilt phase makes death the maximum penalty, so nothing that happens at the penalty phase can implicate Apprendi. (See, e.g., People v. Anderson (2001) 25 Cal.4th 543, 589-590, fn. 14 [“[U]nder the California death penalty scheme, once the defendant has been convicted of first degree murder and one or more special circumstances has been found true beyond a reasonable doubt, death is no more than the prescribed statutory maximum for the offense….”]; People v. Ochoa (2001) 26 Cal.4th 398, 454 [“[O]nce a jury has determined the existence of a special circumstance, the defendant stands convicted of an offense whose maximum penalty is death…. Accordingly, Apprendi does not restrict the sentencing of California defendants who have already been convicted of special circumstance murder.”].)


But this assertion, in the context of Apprendi, appears incorrect. Under our death penalty scheme, ‘the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant‘ [Citation; original emphasis] upon a conviction for first degree murder and special circumstance true finding – with nothing more – is life imprisonment without parole. A death verdict is authorized only when the penalty jury has unanimously determined that “the aggravating circumstances outweigh the mitigating circumstances’ [Citations] – which necessarily presupposes that the penalty jury has found at least one [PC 190.3] circumstance to be aggravating. … Our cases have not satisfactorily explained why this additional finding of at least one aggravating factor, which is a necessary precursor to the weighing determination and is thus required for the imposition of a death sentence, is not governed by the Apprendi rule. [Emphasis added.] (People v. McDaniel,  supra,____ Cal 5th at ____.)



Furthermore, the finding of the required special circumstance(s) for death eligibility does not necessarily constitute the finding of an aggravating circumstance:


Whereas states like Arizona and Florida statutorily enumerate a specific list of factors that, if found to exist by the jury, have been deemed per se aggravating, section 190.3 takes a different approach: It enumerates a combined list of potentially relevant factors and leaves it to the penalty phase jury to determine whether, in a given case, each individual factor is aggravating, mitigating, or irrelevant for sentencing selection. (See § 190.3 [the penalty jury “shall take into account any of the following factors if relevant” (italics added)].) Nothing in our death penalty scheme deems a special circumstance to be per se aggravating. Instead, section 190.3 leaves it to the penalty jury to determine whether ‘the existence of any special circumstances found to be true’ is an aggravating factor ‘relevant’ to the penalty determination. (§ 190.3, factor (a).) [Emphasis original.] (People v. McDaniel,  supra,____ Cal 5th at ____.)


Nor is this concern merely speculative.


The list of special circumstances in section 190.2 is broad and includes a number of circumstances, such as commission of murder during a burglary or robbery, that do not seem necessarily aggravating in every case. (People v. McDaniel,  supra,____ Cal 5th at ____.)


In sum, this issue “deserves careful and thorough reconsideration … in a case where it is more fully developed.” (Ibid.)


Sample Instruction: [Add at beginning of CC 763]:


Before even considering whether or not to impose the death penalty you must first unanimously find at least one aggravating factor listed below beyond a reasonable doubt. If any juror has a reasonable doubt that the prosecution proved at least one aggravating factor beyond a reasonable doubt you must return a verdict of life without parole.

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