# People v. Adcox

> California Supreme Court · November 17, 1988 · 47 Cal. 3d 207

URL: https://www.frixlaw.com/law-library/cases/9850994

## Case

- **Full name:** The PEOPLE, Plaintiff and Respondent, v. KEITH EDWARD ADCOX, Defendant and Appellant
- **Court:** California Supreme Court
- **Decided:** November 17, 1988
- **Citations:** 47 Cal. 3d 207; 253 Cal. Rptr. 55; 763 P.2d 906; 1988 Cal. LEXIS 254
- **Precedential status:** Published
- **Opinion:** Concurrence by Mosk
- **Judges:** Eagleson, Broussard, Mosk
- **Cited by:** 145 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

MOSK, J.
I concur in the affirmance of the judgment as to guilt, but I dissent from the affirmance of the judgment as to penalty.
After review of the record of the guilt phase I find no prejudicial error. It is, however, with some reluctance that I agree with the majority that the trial court did not err by denying defendant’s motion for change of venue. To hold otherwise on the relatively meager showing made by defendant would be tantamount to a determination that the residents of this state’s less populated counties cannot act as fair and impartial jurors in a capital trial. Such a determination would be unwarranted and unjustified.
I recognize that in certain kinds of cases there may indeed be a reasonable likelihood that a fair and impartial trial cannot be had in a sparsely populated county. In those cases, of course, the court must order a change of venue on the defendant’s motion and proceed to transfer the action (Pen. Code, § 1033) or—perhaps better—to import a jury (id., § 1036.7; see generally Williams v. Superior Court (1983) 34 Cal.3d 584, 595-596 [ 194 Cal.Rptr. 492 , 668 P.2d 799 ] (cone. opn. of Mosk, J.); Odle v. Superior Court (1982) 32 Cal.3d 932, 958-959 [ 187 Cal.Rptr. 455 , 654 P.2d 225 ] (dis. opn. of Mosk, J.)). This, however, is not such a case. Accordingly I believe the trial court’s denial of defendant’s change-of-venue motion was not error.
I cannot agree with the majority, however, that defendant may be put to death without offense to the Constitution. In McCleskey v. Kemp (1987) 481 U.S. 279, 306-308 [ 95 L.Ed.2d 262, 287-289 , 107 S.Ct. 1756, 1774-1775 ], the United States Supreme Court held clearly, albeit impliedly, that a defendant sentenced to death can show disproportionality violative of Eighth Amendment principles by demonstrating that other similarly situated defendants did not receive the death penalty, and that such inconsistency in *277 results is not based on objective circumstances of the crime and the criminal. In my view, defendant makes such a showing here.
First, it is undisputed that the results are plainly inconsistent: defendant was sentenced to death, Love received a term of imprisonment for 25 years to life, and Tillery was committed to the Youth Authority. Second, the inconsistency cannot be deemed to be based on objective circumstances. The actions of Love and Tillery were scarcely less serious than those of defendant: Tillery devised and actively promoted the criminal scheme and Love executed it jointly with defendant. More important, the mental states of Love and Tillery were no less blameworthy than that of defendant: they, like him, intended that a killing take place.
Under these circumstances, I would hold it unconstitutional to execute the sentence of death on defendant. Therefore, I would exercise our authority under Penal Code sections 1260 and 1181, subdivision 7 (see, e.g., People v. Lucero (1988) 44 Cal.3d 1006, 1034-1036 [ 245 Cal.Rptr. 185 , 750 P.2d 1342 ] (cone, and dis. opn. of Mosk, J.)) and vacate the judgment as to penalty and remand the cause to the trial court with directions to impose a sentence of life imprisonment.
Appellant’s petition for a rehearing was denied February 2, 1989, and the opinion was modified to read as printed above.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9850994. Public record. Not legal advice.