People v. Hernandez

BAXTER, J., Concurring.

I agree with affirming the murder and conspiracy convictions, affirming the weapon and special circumstance findings for the murder, but reversing the murder penalty judgment. I accept the majority’s analysis of those issues.

I also agree that we should vacate the special circumstance finding as to the conviction for conspiracy to commit murder (Pen. Code, § 182, subd. (a); hereafter section 182(a)), 1 and the resulting sentence of life without parole on that count. For various reasons to which the majority allude, it is unclear that the voters, when adopting the 1978 initiative death penalty law, intended to apply its special capital punishment provisions not only to actual first degree murder, but also to the separate crime of conspiracy to commit murder.

I am particularly influenced by the disparity that would otherwise have arisen between the maximum punishment for conspiracy to commit murder on the one hand, and that provided in 1978 for attempted willful and premeditated murder on the other. (See maj. opn., ante, at pp. 867-868.) Under these circumstances, and particularly where the ultimate penalty of death is at stake, we should, as the majority suggest, apply the rule of lenity and give defendants the benefit of the doubt. As a result, under current law, the punishment for a conspiracy to commit murder, no matter how aggravated, is 25 years to life. (§§ 182(a), 190, subd. (a).)

I do wish to stress, however, that nothing the majority say forecloses the Legislature, or the electorate, from clearly providing that particular kinds of *879 aggravated murder conspiracies are subject to greater punishment, including death or life without parole. To support their conclusion that the voters who adopted the 1978 initiative death penalty law did not intend that result, the majority presume the voters were aware of two 1977 United States Supreme Court decisions, decided the same day, that may raise a question whether the death penalty is constitutional for crimes that do not involve the actual taking of human life. (Coker v. Georgia (1977) 433 U.S. 584 [ 97 S.Ct. 2861 , 53 L.Ed.2d 982 ] (Coker); Eberheart v. Georgia (1977) 433 U.S. 917 [ 97 S.Ct. 2994 , 53 L.Ed.2d 1104 ] (Eberheart).) But as the majority concede with good reason, that issue is not resolved, and we do not resolve it here. Indeed, in light of contemporary realities, there are substantial reasons to question whether the current high court would invalidate a carefully drafted statute that allowed death or life without parole for limited categories of aggravated murder conspiracies even when human life was not lost.

At the outset, the results in both Coker and Eberheart were skewed by the views of two members of that court that the death penalty is always unconstitutional. (See Coker, supra, 433 U.S. 584, 600 [ 97 S.Ct. 2861, 2870 ] (conc. opn. of Brennan, J.); id. at pp. 600-601 [97 S.Ct. at pp. 2870-2871] (conc. opn. of Marshall, J.).) In Coker , only four other justices appeared to conclude that the nonlethal crime there at issue—rape—could never support a death judgment. (Id. at pp. 586-600 [97 S.Ct. at pp. 2863-2870] (plur. opn. of White, J.).) A fifth left open the possibility that especially brutal and injurious rapes might qualify (id. at pp. 601-604 [97 S.Ct. at pp. 2870-2872] (conc. opn. of Powell, J.)), and two others concluded, at a minimum, that rape with a past record of capital crimes should qualify (id. at pp. 604-622 [97 S.Ct. at pp. 2872-2881] (dis. opn. of Burger, C. J., joined by Rehnquist, J.)). Eberheart, supra, 433 U.S. 917 , a one-paragraph per curiam opinion, cited Coker , but provided no other clue why one may not be executed for the crime at issue in that case—aggravated kidnapping.

In the intervening quarter-century, the high court has not returned to the question of what crimes are constitutionally exempt from capital punishment. Of course there is little doubt, under the Eighth Amendment, that the extreme penalties of death and life without parole must be reserved for the most serious and heinous of offenses. But as recent events have demonstrated, murder conspiracies—which, by their nature, target human life—can rise to very high levels of danger and depravity.

Suppose an al Qaeda cell or antigovemment paramilitarists conspired to blow up the Golden Gate Bridge at rush hour, or the state capítol during business hours, seeking to kill everyone caught in the blast, but fortunately were thwarted as they lay in wait to detonate their explosive device. Suppose *880 a team of freeway snipers, operating in California with murderous intent, had wounded dozens, caused scores of dangerous auto accidents, and panicked the population of an entire region, but by pure luck had not succeeded in killing anyone. Suppose organized criminals, with the means to accomplish their goal, conspired and prepared, but ultimately failed, to assassinate numerous California judges, law enforcement officers, and witnesses who stood in the way of their racketeering or drug-running activities. Suppose White supremacists conspired and prepared to set an African-American church afire during Sunday services, but were prevented at the last minute from carrying out their plan. In my view, a carefully crafted statute providing capital penalties for such egregious conspiracies might well survive constitutional scrutiny.

The decision whether to adopt such a statute is for the Legislature or the voters. My comments here are intended only to dispel any notion, which might otherwise arise from the majority’s decision, that an attempt to do so would face certain constitutional invalidation.

On August 13, 2003, the opinion was modified to read as printed above.

All further unlabeled statutory references are to the Penal Code.