# People v. Frierson

> California Supreme Court · August 31, 1979 · 25 Cal. 3d 142

URL: https://www.frixlaw.com/law-library/cases/9629258

## Case

- **Full name:** The PEOPLE, Plaintiff and Respondent, v. LAVELLE FRIERSON, Defendant and Appellant; In Re LAVELLE FRIERSON on Habeas Corpus
- **Court:** California Supreme Court
- **Decided:** August 31, 1979
- **Citations:** 25 Cal. 3d 142; 158 Cal. Rptr. 281; 599 P.2d 587; 1979 Cal. LEXIS 302
- **Precedential status:** Published
- **Opinion:** Concurrence by Mosk
- **Judges:** Tobriner, Richardson, Mosk, Bird
- **Cited by:** 268 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9629258

## How later opinions describe it (automated extraction)

- holding that even though defendant was rational and appeared to be without mental abnormalities, and even though killings appeared to be deliberate, counsel was prejudicially ineffective for failing to investigate evidence that defendant was impaired on day of murders
- noting that “our statute does not require the sentencing authority to expressly find ... that the aggravating circumstances in fact outweigh the mitigating circumstances,” a requirement only added in 1978

## Opinion text

MOSK, J.
I concur in the judgment reversing defendant’s conviction and granting the writ of habeas corpus. Moreover, because the state is entitled to retry defendant on the charge of murder, it is appropriate that the court determine whether such trial can lawfully be conducted under the 1977 death penalty legislation. Although in the present posture immediate review by the United States Supreme Court is unlikely, there will be ample opportunity for such review before a capital sentence is carried out in this or any other case.
With the utmost reluctance, I have come full circle in my consideration of the death penalty in California.
In the first Anderson case (In re Anderson (1968) 69 Cal.2d 613, 635 [ 73 Cal.Rptr. 21 , 447 P.2d 117 ]), upholding the death penalty, I concurred by observing that “I am bound to the law as I find it to be and not as I might fervently wish it to be.” 1 In so doing, I quoted Justice Frankfurter: to yield to personal predilections would be to act willfully “in the sense of enforcing individual views instead of speaking humbly as the voice of law by which society presumably consents to be ruled. . . .” (Frankfurter, The Supreme Court in the Mirror of Justices (1957) 105 U.Pa.L.Rev. 781, 794).
*189 Subsequently in the second Anderson case (People v. Anderson (1972) 6 Cal.3d 628 [ 100 Cal.Rptr. 152 , 493 P.2d 880 ]), I joined a majority of this court in the well-reasoned and movingly expressed opinion of Chief Justice Wright, holding that capital punishment was cruel or unusual punishment under the California Constitution (art. I, § 17). We held that while organized society permitted the death penalty in previous years— from the days of “vigilante justice and public hangings” (id., p. 645)—current mores developed throughout more enlightened western societies frowned on taking a human life for even the most heinous offenses.
The people of California responded quickly and emphatically, both directly and through their elected representatives, to callously declare that whatever the trends elsewhere in the nation and the world, society in our state does not deem the retributive extinction of a human life to be either cruel or unusual. (Cal. Const., art. I, § 27, adopted Nov. 7, 1972; Stats. 1973, ch. 719, p. 1298; Stats. 1977, ch. 316, p. 1255; Pen. Code, §§ 190-190.5, added by Prop. 7, Gen. Elec. (Nov. 7, 1978).)
“Cruelty” is not definable with precision. It is in the eye of the beholder: what may be perceived as cruelty by one person is seen as justice by another. Thus, this court, in ascertaining the permissible limits of punishment, must look in the first instance to those values to which the people of our state subscribe. That as one individual I prefer values more lofty than those implicit in the macabre process of deliberately exterminating a human being does not permit me to interpret in my image the common values of the people of our state.
The day will come when all mankind will deem killing to be immoral, whether committed by one individual or many individuals organized into a state. Unfortunately, morality appears to be a waning rule of conduct today, almost an endangered species, in this uneasy and tortured society of ours: a society in which sadism and violence are highly visible and often accepted commodities, a society in which guns are freely available and energy is scarce, a society in which reason is suspect and emotion is king. Thus with a feeling of futility I recognize the melancholy truth that the anticipated dawn of enlightenment does not seem destined to appear soon.
I am therefore compelled to conclude that the 1977 death penalty legislation' does not violate the California Constitution. Whether it complies with the federal Constitution is a different question that is much *190 more difficult to answer. The difficulty, of course, is that the United States Supreme Court has both created the problem of such compliance and failed to give the states consistent and workable guidance on how to solve it.
I need not document at length the manifest inadequacy for that purpose of the high court’s first decision in this sequence, Furman v. Georgia (1972) 408 U.S. 238 [ 33 L.Ed.2d 346 , 92 S.Ct. 2726 ], The case was generally taken to stand for the proposition, expressed in various ways by a plurality of three of the concurring justices, that the death penalty constitutes cruel and unusual punishment under the Eighth and Fourteenth Amendments if it is imposed pursuant to a discretionary sentencing statute that creates a substantial risk that it will be inflicted in an arbitrary and capricious manner. No clear guidelines were provided, however, as to the precise sentencing procedures necessary to satisfy this reading of the Constitution. The court voiced its concerns in multiple opinions, 2 and it was inevitable that compliance by the states would be “not an easy task considering the glossolalial manner in which those concerns were expressed.” (Woodson v. North Carolina (1976) 428 U.S. 280, 317 [ 49 L.Ed.2d 944, 969 , 96 S.Ct. 2978 ] (dis. opn. of Rehnquist, J.).) Yet curiously little guidance emerged from that welter of views: “the Court was practically silent with respect to what particular procedures would pass constitutional muster.” (Hancock, The Perils of Calibrating the Death Penalty Through Special Definitions of Murder (1979) 53 Tul.L.Rev. 828, 839.) In effect the court ruled that the statute before it was unconstitutional without saying what would make it constitutional. 3
A majority of state legislatures thereafter enacted new death penalty laws attempting to comply with Furman as they understood it. “Predictably, the variety of opinions supporting the judgment in Furman engendered confusion as to what was required in order to impose the death penalty in accord with the Eighth Amendment. Some States responded to what was thought to be the command of Furman by adopting mandatory death penalties for a limited category of specific crimes thus eliminating all discretion from the sentencing process in capital cases. Other States attempted to continue the practice of individually assessing the culpability of each individual defendant convicted of a capital offense and, at the *191 same time, to comply with Furman , by providing standards to guide the sentencing decision.” (Fns. omitted.) (Lockett v. Ohio (1978) 438 U.S. 586, 599-600 [ 57 L.Ed.2d 973, 986-987 , 98 S.Ct. 2954 ] (plur. opn. of Burger, C.J.); accord, Woodson v. North Carolina (1976) supra, 428 U.S. 280, 298-299 [ 49 L.Ed.2d 944, 957-958 ] (plur. opn. of Stewart, J., Powell, J., and Stevens, J.); for a survey of such legislation, see Note, Discretion and the Constitutionality of the New Death Penalty Statutes (1974) 87 Harv.L.Rev. 1690.) California chose at that time to enact a statute of the mandatory death penalty type. (Stats. 1973, ch. 719; see Rockwell v. Superior Court (1976) 18 Cal.3d 420, 446-448 [ 134 Cal.Rptr. 650 , 556 P.2d 1101 ] (conc. opn. of Clark, J.).)
In 1976 the United States Supreme Court returned to the death penalty issue in Gregg and its four companion cases. Clarification of Furman was eagerly awaited, but the hope proved in vain. Once more the court spoke with many voices, 4 the prevailing view was again that of a mere plurality of three justices, and the result was a little light but still further confusion: “The Supreme Court’s five death penalty cases of 1976, like the regenerating Hydra of Greek mythology, have engendered more than one unsettled question for every issue they purportedly laid to rest.” (Fn. omitted.) (Hancock, op.cit. supra, 53 Tul.L.Rev. 828.)
It is true the court almost settled the question of mandatory death penalty statutes, holding that solution to the Furman problem was constitutionally impermissible in most instances. (Woodson v. North Carolina (1976) supra, 428 U.S. 280 ; Roberts v. Louisiana (1976) 428 U.S. 325 [ 49 L.Ed.2d 974 , 96 S.Ct. 3001 ].) 5 As far as it went, that ruling at least was clear, and it promptly compelled our unanimous decision in Rockwell that California’s 1973 mandatoiy death penalty law violated the federal Constitution.
The Legislature thereupon enacted a statute of the second type that seemed to comply with Furman , i.e., a statute attempting to control the exercise of the jury’s discretion by various procedural devices. (Stats. *192 1977, ch. 316.) It is that law we now have before us. Unfortunately its validity cannot.be judged so easily as its predecessor’s: it hinges on the meaning not of Woodson and Roberts but of the plurality opinions in the other three cases the court decided at the same time: Gregg v. Georgia, supra, Proffitt v. Florida (1976) 428 U.S. 242 [ 49 L.Ed.2d 913 , 96 S.Ct. 2960 ], and Jurek v. Texas (1976) 428 U.S. 262 [ 49 L.Ed.2d 929 , 96 S.Ct. 2950 ], The message of the latter opinions is far less clear, however, largely because of the manner in which the court proceeded in each case: after reviewing in detail the provisions of the particular state statute in issue, the plurality concluded that those provisions—supplemented at certain critical points by state court constructions of the statute—satisfied the concerns expressed in Furman . But nowhere did the plurality expressly state which if any of those provisions was actually required to ensure the scheme’s constitutionality. In effect the court ruled in each instance that the statute before it was constitutional without saying what would render it unconstitutional; it identified the sufficient but not the necessary conditions to the validity of the law.
This omission would be harmless if all the discretionaiy death penalty laws were similar to one or another of those approved in Gregg and its companion cases. But they are not—a point the plurality itself emphasized by observing that “each distinct system must be examined on an individual basis.” (428 U.S. at p. 195 [49 L.Ed.2d at p. 887].) It cannot be denied that California’s 1977 death penalty legislation differs in a number of respects from those of Georgia, Florida, and Texas. For example, our statute does not require the sentencing authority to expressly find that at least one of the statutory aggravating factors is proved beyond a reasonable doubt, as in Georgia (id. at p. 166, fn. 9 [49 L.Ed.2d at p. 870]), or that the answer to each of three questions relating to aggravating factors is affirmative beyond a reasonable doubt, as in Texas (id. at p. 269 [49 L.Ed.2d at p. 936], or that the aggravating circumstances in fact outweigh the mitigating circumstances, as in Florida (id. at p. 250 [49 L.Ed.2d at p. 921]). 6 Nor does our statute require, as in the above states, that the authority with primary responsibility for fixing the *193 penalty (the jury in Georgia and Texas, the court in Florida) put each of the foregoing findings in writing, thereby permitting “meaningful appellate review.” (428 U.S. at pp. 195, 251, and 276 [49 L.Ed.2d at pp. 886, 922, 941] [semble].) 7 Finally, our statute does not require that on an appeal from a judgment of death this court engage in the process of “proportionality review” prescribed by law in Georgia (428 U.S. at p. 198 [49 L.Ed.2d at p. 888]) and adopted by judicial construction in Florida (id. at p. 251 [49 L.Ed.2d at p. 922]) and Texas (id. at p. 276 [49 L.Ed.2d at p. 941] [semble]).
Whether these are distinctions without a difference depends in turn on whether the Supreme Court’s references to the cited provisions of Georgia, Florida, and Texas law were “requirements of constitutional law, as opposed to mere beaming approval from the high bench.” (Black, Due Process for Death: Jurek v. Texas and Companion Cases (1976) 26 Cath.U.L.Rev. 1, 2-3.) But these and numerous other questions were left unanswered by Gregg et al. 8 “The Supreme Court has unequivocally held that standardless death sentencing is unconstitutional, and yet in [Gregg et al.] it failed to provide much direction concerning what the source of *194 standards should be. Although those cases clearly establish the importance of permitting a defendant to introduce whatever mitigating evidence he has, they do little to clarify the implementation of the mitigating factor requirement. Consequently, lawmakers and jurists face a series of confounding questions . . . .” (Liebman & Shepard, Guiding Capital Sentencing Discretion Beyond the “Boiler Plate”: Mental Disorder as a Mitigating Factor (1978) 66 Geo.L.J. 757, 778; accord, United States v. Kaiser (5th Cir. 1977) 545 F.2d 467, 472 (holding a federal death penalty statute unconstitutional under Furman and expressing relief at being spared the task of producing a definitive exegesis of the “complex if not confounding” opinions in Gregg et al.).) 9
The confusion persists to this day. In the latest death penalty decision of the Supreme Court (Lockett v. Ohio (1978) supra, 438 U.S. 586 ), Chief Justice Burger conceded that “We do not write on a ‘clean slate.’ ” (Id. at p. 597 [ 57 L.Ed.2d at p. 985 ] (plur. opn.).) He then essayed a review of Furman and Gregg et al. (id. at pp. 597-601 [57 L.Ed.2d at pp. 985-988]), and concluded with the classic understatement that “The signals from this Court have not, however, always been easy to decipher,” (Id. at p. 602 [ 57 L.Ed.2d at p. 988 ].) The Chief Justice then frankly recognized—as I here contend—that “The States now deserve the clearest guidance that the Court can provide; we have an obligation to reconcile previously differing views in order to provide that guidance.” (Ibid.)
Regrettably he was unable to accomplish that reconciliation and furnish that guidance. On the principal holding in the case—i.e., that Furman and its progeny require that any and all relevant mitigating factors offered by the defendant be admissible on penalty, contrary to the Ohio death penalty statute there in issue—the Chief Justice joined the Stewart-Powell-Stevens plurality of Gregg et al., but was unable to muster a fifth vote to achieve a majority. 10 Dissenting on this issue, Justice Rehnquist correctly pointed out that “A majority of the Court has yet to endorse the course taken by today’s plurality in using the Eighth Amendment as a device for importing into the trial of capital cases extremely stringent procedural restraints.” (Id. at p. 632 [ 57 L.Ed.2d at p. 1007 ].) Rather, Justice Rehnquist observed, in Furman and Gregg et al. *195 the court has not cleaved “to a principled doctrine either holding the infliction of the death penalty to be unconstitutional per se or clearly and understandably stating the terms under which the Eighth and Fourteenth Amendments permit the death penalty to be imposed. Instead, . . . the Court has gone from pillar to post, with the result that the sort of reasonable predictability upon which legislatures, trial courts, and appellate courts must of necessity rely has been all but completely sacrificed.” (Id. at p. 629 [ 57 L.Ed.2d at p. 1005 ].)
In view of the foregoing history, a state court would be rash indeed to predict how and when the United States Supreme Court will ultimately solve the problem it created in Furman, 11 In the meantime, I submit it would be prudent to refrain from unnecessary advisory opinions on what are the precise constitutional requirements of Furman and Gregg et al. and whether the 1977 death penalty legislation in California complies with those requirements. That issue can finally be decided, whether by this court or by the United States Supreme Court, only when there is presented on appeal an otherwise unimpeachable judgment of death. Until such a judgment is before us for review we cannot determine whether the legislation in question was constitutionally applied; and until then I also deem it appropriate to withhold a final decision on whether—and if so, how—that legislation can reasonably be construed to be constitutional on its face. For these reasons I do not join in the elaborate analysis of the 1977 law set forth in the majority opinion (ante, pp. 176-184).
Yet that law, like any other enactment of the Legislature, comes before us clothed with a strong presumption of constitutionality. (See, e.g., In re Anderson (1968) supra, 69 Cal.2d 613, 628 ; In re Cregler (1961) 56 Cal.2d 308, 311 [ 14 Cal.Rptr. 289 , 363 P.2d 305 ]; Lundberg v. County of Alameda (1956) 46 Cal.2d 644, 652 [ 298 P.2d 1 ]; Lockheed Aircraft Corp. v. Superior Court (1946) 28 Cal.2d 481, 484 [ 171 P.2d 21 , 166 A.L.R. 701 ]; *196 People v. Superior Court (1937) 10 Cal.2d 288, 298 [ 73 P.2d 1221 ]; People v. Globe Grain & Mill Co. (1930) 211 Cal. 121, 127 [ 294 P. 3 ]; People v. Hayne (1890) 83 Cal. 111, 115 [ 23 P. 1 ].) Because of that presumption, “Statutes must be upheld unless their unconstitutionality clearly, positively and unmistakably appears.” (In re Dennis M. (1969) 70 Cal.2d 444, 453 [ 75 Cal.Rptr. 1 , 450 P.2d 296 ].) At the present time it does not clearly, positively and unmistakably appear to me that the 1977 death penalty legislation violates the Eighth and Fourteenth Amendments as construed in Furman and Gregg et al. The presumption of its constitutionality has therefore not been rebutted, and I join in the majority’s conclusion that defendant can be retried under that statute.
Newman, J., concurred in the judgment and in the views expressed by Justice Mosk.
Justice Stewart put it this way in Gregg v. Georgia (1976) 428 U.S. 153, 175 [ 49 L.Ed.2d 859, 875 , 96 S.Ct. 2909 ]; “we may not act as judges as we might as legislators.”
The decision was announced in a brief per curiam opinion, followed by no less than five concurring opinions and four dissenting opinions. No concurring justice, moreover, signed the opinion of any other concurring justice.
The commentators echoed and amplified these criticisms. (See, e.g., Polsby, The Death of Capital Punishment? Furman v. Georgia 1972 Sup.Ct.Rev. 1; Comment, Capital Punishment After Furman (1973) 64 J.Crim.L. & C. 281.)
The five cases produced some two dozen opinions, filling more than two hundred pages of the official reports.
"’The court specifically left unanswered, however, the question whether a mandatory death penalty may be permissible for certain categories of murder defined largely by the “character or record” of the offender, such as a prisoner serving a life sentence or an escapee. (Woodson, at p. 287, fn. 7 [49 L.Ed.2d at p. 951]; see also Roberts v. Louisiana (1977) 431 U.S. 633, 637, fn. 5 [ 52 L.Ed.2d 637, 642 , 97 S.Ct. 1993 ]; Lockett v. Ohio (1978) supra, 438 U.S. 586, 604 . fn. 11 [ 57 L.Ed.2d 973, 990 ] (plur. opn. of Burger, C.J.).)
The latter requirement—a finding on whether the aggravating factors outweigh the mitigating factors—is now part of California law, having been added to new Penal Code section 190.3 by Proposition 7 at the November 1978 General Election. It is interesting to note that Senator John V. Briggs, a proponent of the proposition, urged in his ballot pamphlet argument to the voters that a “first-year law student could have told [the opponents of the proposition] this provision is required by the U.S. Supreme Court. The old law [i.e., the 1977 legislation now before us] does not meet this requirement and might be declared unconstitutional . . . .” (Ballot Pamp., rebuttal to argument against Prop. 7, Gen. Elec. (Nov. 7, 1978) p. 35.)
It appears that under our statute the authority with primary responsibility for fixing the penalty is the jury. Subdivision (c) of Penal Code section 190.4 provides that if the defendant is convicted by a jury the trier of fact in the penalty phase shall be the same jury; indeed, the Legislature's strong preference for a jury trial of penalty is demonstrated by the requirement in subdivision (b) of the same section that in the absence of a waiver by both sides the penalty phase shall be tried to a jury even if the defendant was convicted by the court or by guilty plea. Nor does the jury’s role appear to be advisory only, as in Florida: Penal Code section 190.3 declares no less than three times that in the penalty phase the trier of fact shall “determine” the punishment to be inflicted. By contrast, on the automatic motion for modification of the verdict provided by subdivision (e) of section 190.4, the stated function of the trial court is not to choose the appropriate penalty as a matter of first impression but simply to exercise its independent judgment “as to whether the weight of the evidence supports the jury’s findings and verdicts.” This, of course, is no more than the long-settled standard for reviewing any jury verdict on a motion for new trial based on insufficiency of the evidence. (People v. Love (1961) 56 Cal.2d 720, 728 [ 16 Cal.Rptr. 777. 17 Cal.Rptr. 481 , 366 P.2d 33, 809 ], disapproved on other grounds in People v. Morse (1964) 60 Cal.2d 631, 637, fn. 2 [ 36 Cal.Rptr. 201 , 388 P.2d 33 , 12 A.L.R.3d 810 ].)
For example, must the jury unanimously agree on which aggravating factors are established by the evidence? Must they so find beyond a reasonable doubt? In order to permit “meaningful appellate review,” must they make similar findings as to the mitigating factors? Before imposing a sentence of death, must they unanimously agree that the aggravating factors outweigh the mitigating factors? Must that finding also be beyond a reasonable doubt? By how much must the aggravating factors “outweigh” the mitigating factors: is it enough that the former outweigh the latter by a “slight” or “mere” preponderance, or is a heavier burden required (e.g., “substantially” outweigh) in view of the nature of the penalty?
At least as many questions remain unanswered concerning the process of “proportionality review.”
Again the commentators join in and expand upon this criticism. (See, e.g., The Supreme Court, 1975 Term (1976) 90 Harv.L.Rev. 63, 67-76; Hancock, op.cit. supra, 53 Tul.L.Rev. 828, 831 & fn. 14, 839-842; Black, op.cit. supra, 26 Cath.U.L.Rev. 1 (passim).
,The Ohio statute was nevertheless struck down because Justices Blackmun and White found it unconstitutional on wholly different grounds and Justice Marshall adhered to his Furman view that the death penalty is unconstitutional per se. Justice Brennan did not participate.
Perhaps it will never be satisfactorily solved. That dismaying possibility can be inferred from the candid admission of the Chief Justice in Lockett (id. at p. 605 [ 57 L.Ed.2d at p. 990 ]) that “There is no perfect procedure for deciding in which cases governmental authority should be used to impose death.” Whether a civilized society should proceed with executions when it has only imperfect procedures for determining which of its members it will deliberately put to death is a question I leave to the consciences of the justices of the high federal bench; the issue is apparently foreclosed under the law of California as it stands today. For my part I suspect, with Professor Black, that the laws upheld so laboriously in Gregg et al. are “conspicuous illustrations of the fact that our legal system, after years of travail since Furman , cannot produce a procedure fit for choosing people to die.” (Black, op.cit. supra, 26 Cath.U.L.Rev. 1, 16.) If this is true, the Furman-Gregg-Lockett plurality have been pursuing a will-o’-the-wisp.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9629258. Public record. Not legal advice.