People v. Padilla

KENNARD, J.

I concur in the judgment and most of the reasoning of the majority. One issue, however—defendant’s claim that his sentence of death is disproportionate to his level of culpability—is a closer question than the majority’s rather summary treatment of it (maj. opn., ante, at pp. 961-962) would suggest, and therefore deserves additional comment.

Article I, section 17 of the California Constitution prohibits the state from imposing “[c]ruel or unusual punishment.” Even if the statutorily ■'authorized punishment for a criminal offense is not unconstitutional when viewed in the abstract, the sentence imposed on a defendant convicted of that offense may nonetheless be “cruel or unusual.” (People v. Dillon (1983) 34 Cal.3d 441, 479 [ 194 Cal.Rptr. 390 , 668 P.2d 697 ].)

To determine whether a sentence is cruel or unusual as applied to a particular defendant, a reviewing court must examine the circumstances of the offense, including its motive, the extent of the defendant’s involvement in the crime, the manner in which the crime was committed, and the consequences of the defendant’s acts. The court must also consider the personal characteristics of the defendant, including his or her age, prior criminality, and mental capabilities. (People v. Dillon, supra, 34 Cal.3d at p. 479 .) If the court concludes that the penalty imposed is “grossly disproportionate to the defendant’s individual culpability” (ibid.), or, stated another way, that the punishment “ ' “shocks the conscience and offends fundamental notions of human dignity” ’ ” (People v. Cox (1991) 53 Cal.3d 618, 690 [ 280 Cal.Rptr. 692 , 809 P.2d 351 ]), the court must invalidate the sentence as unconstitutional.

*973 In this case, defendant was sentenced to death for the murder of Esther Alvarado. But defendant played only a minor role in the murder: he did not kill Alvarado, nor did he assist in killing her. His sole involvement consisted of participating in a conversation that his girlfriend, Brenda Prado, had with the actual killer, Jesse Hernandez, in the course of which Hernandez agreed to kill Alvarado in exchange for drugs to be furnished by Prado. Even in that conversation, defendant did not play a leading role: he did not initiate the plan to kill Alvarado (the killing was suggested by Hernandez), and it was Prado, not defendant, who offered to give Hernandez drugs in exchange for killing Alvarado. In all likelihood, Alvarado would still have been murdered as planned, even if defendant had taken no part in the conversation in question.

Nevertheless, I agree with the majority that defendant’s death sentence in this case should not be vacated. Although defendant’s participation in the planned killing was not crucial, he willingly and actively supported the plan. Defendant endorsed Hernandez’s proposal to kill Alvarado in exchange for drugs, and he offered Hernandez a gun to use as the murder weapon (Hernandez responded that he would use his own gun). Also, defendant was a part owner of the drugs that Prado used to pay Hernandez for Alvarado’s murder, and he voiced no objection to their use for this purpose.

Moreover, to determine whether a given punishment is impermissibly disproportionate, we consider not only the nature of the offense and of the defendant’s participation in that offense but also the nature of the offender, including the offender’s “prior criminality.” (People v. Dillon, supra, 34 Cal.3d at p. 479 .) Here, defendant’s involvement in Alvarado’s murder was not an isolated incident in an otherwise law-abiding and nonviolent life. On the contrary, the prosecution introduced evidence that in the course of the drug-related feud that led to Alvarado’s murder, defendant had “beaten up” Alvarado and that he had shot Prado’s daughter (who was a close friend of Alvarado) in the abdomen because he believed that she, like Alvarado, had stolen drugs from him. In addition, defendant had a long history of violent conduct and was a convicted felon who had served time in prison. (See Pen. Code, § 190.3, factors (b) & (c) [prior violent conduct and prior felony convictions are aggravating circumstance supporting the death penalty]; Cal. Rules of Court, rule 421(b)(l)-(3) [prior violent conduct, prior convictions, and prior prison terms are aggravating circumstances supporting increased punishment in noncapital cases].)

Based on all of these facts, the punishment in this case is not “grossly disproportionate to the defendant’s individual culpability” (People v. Dillon, *974 supra, 34 Cal.3d at p. 479 ), nor does it “ ‘ “shock[] the conscience and offend[] fundamental notions of human dignity.” ’ ” (People v. Cox, supra, 53 Cal.3d at p. 690 .)

Mosk, J., concurred.

Appellant’s petition for a rehearing was denied February 22, 1996, and the opinion was modified to read as printed above.