Opposition Brief — Randall Clark Wall, Petitioner v. California

No. 17-9525

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RANDALL CLARK WALL,

. Petitioner,

v.

THE STATE OF CALIFORNIA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE CALIFORNIA SUPREME COURT

BRIEF IN OPPOSITION

XAVIER BECERRA

Attorney General of California

EDWARD C. DUMONT

Solicitor General

GERALD A. ENGLER

Chief Assistant Attorney General

JULIE L. GARLAND

Senior Assistant Attorney General

GONZALO C. MARTINEZ

Deputy Solicitor General

HOLLY D. WILKENS*

Supervising Deputy Attorney General

*Counsel of Record

600 West Broadway, Suite 1800

San Diego, CA 92101

(619) 738-9031

Holly.Wilkens@doj.ca.gov

Counsel for Respondent

l

CAPITAL CASE

QUESTIONS PRESENTED

Whether the Constitution requires that a California jury rendering a

verdict of death must unanimously find beyond a reasonable doubt that specific

aggravating factors exist, that they outweigh mitigating factors, and that

death is the appropriate penalty, even though the defendant has already

pleaded guilty to an offense whose special characteristics make the crime

eligible for the death penalty.

ii

TABLE OF CONTENTS

Page

Statement ........................................................................................................ 1

Argument ......................................................................................................... 3

Conclusion ...................................................................................................... 12

iii

TABLE OF AUTHORITIES

Page

CASES

Apprendi v. New Jersey

530 U.S. 466 (2000) ........................................................................................ 6

Becerrada v. California

No. 17-5287, cert. denied, 138 S. Ct. 242 (2017) ........................................... 4

Blacksher v. California

No. 11-7741, cert. denied, 565 U.S. 1209 (2012) .......................................... .4

Boyce v. California

No. 14-7581, cert. denied, 135 S. Ct. 1428 (2015) ......................................... 4

Bramit v. California

No. 09-6735, cert. denied, 558 U.S. 1031 (2009) .......................................... .4

Brooks v. California

No. 17-6237, cert. denied, 138 S. Ct. 516 (2017) ........................................... 4

Cook v. California

No. 07-5690, cert. denied, 552 U.S. 976 (2007) ............................................ .4

Cunningham v. California

No. 15-7177, cert. denied, 136 S. Ct. 989 (2016) ........................................... 4

DeBose v. California

No. 14-6617, cert. denied, 135 S .. Ct. 760 (2014) ........................................... 4

Harrison v. California

No. 05-5232, cert. denied, 546 U.S. 890 (2005) ............................................. 4

Huggins v. California

No. 06-6060, cert. denied, 549 U.S. 998 (2006) ............................................ .4

Hurst v. Florida

136 S. Ct. 616 (2016) .......................................................................... 7, 11, 12

Hurst v. State

.

202 So. 3d 40 (Fla. 2016) .............................................................................. 11

Jackson v. California

No. 16-77 44, cert. denied, 137 S. Ct. 1440 (2017) ......................................... 4

lV

TABLE OF AUTHORITIES

(continued)

Page

Johnson v. California

No. 15-7509, cert. denied, 136 S. Ct. 1206 (2016) ......................................... 4

Jones v. United States

526 U.S. 227 (1999) ........................................................................................ 8

Kansas v. Carr

136 S. Ct. 633 (2016) ...................................................................... 8, 9, 10, 11

Landry v. California

No. 16-9001, cert. denied, 138 S. Ct. 79 (2017) ............................................. 4

Lucas v. California

No. 14-9137, cert. denied, 135 S. Ct. 2384 (2015) ......................................... 4

Mickel v. California

No. 16-7840, cert. denied, 137 S. Ct. 2214 (2017) ........................................ .4

Morgan v. California

No. 07-9024, cert. denied, 552 U.S. 1286 (2008) ........................................... 4

People v. Brown

46 Cal. 3d 432 (1988) ...................................................................................... 9

People v. Gonzales

52 Cal. 4th 254 (2011) .................................................................................... 5

People v. Moon

3 7 Cal. 4th 1 (2005) ........................................................................................ 8

People v. Prince

40 Cal. 4th 1179 (2007) ....................................................................... ; .......... 6

People v. Romero

62 Cal. 4th 1 (2015) ........................................................................................ 5

People v. Valladoli

13 Cal. 4th 590 (1996) .................................................................................... 7

Prieto v. California

No. 03-6422, cert. denied, 540 U.S. 1008 (2003) ........................................... 4

Rangel v. California

No. 16-5912, cert. denied, 137 S. Ct. 623 (2017) .......................................... .4

V

TABLE OF AUTHORITIES

(continued)

Page

Rauf v. State

145 A. 3d 430 (Del. 2016) .............................................................................. 10

Ring v. Arizona

536 U.S. 584 (2002) .................................................................................... 6, 7

Smith v. California

No. 03-6862, cert. denied, 540 U.S. 1163 (2004) .......................................... .4

State v. Whitfield

107 S.W. 3d 253 (N[o. 2003) ......................................................................... 11

Taylor v. California

. No. 10-6299, cert. denied, 562 U.S. 1013 (2010) .......................................... .4

Thompson v. California

No. 17-5069, cert. denied, 138 S. Ct. 201 (2017) ........................................... 4

Tuilaepa v. California

512 U .s. 967 (1994) ........................................................................................ 6

Woodward v. Alabama

134 S. Ct. 405 (2013) .................................................................................... 11

Zant v. Stephens

462 U .s. 862 (1983) ........................................................................................ 8

STATUTES

Delaware Code

Title 11, § 4209 ............................................................................................. 10

California Penal Code

§ 190 ................................................................................................................ 4

§§ 190.1 -190. 9 ................................................................................................. 4

§ 190.2 ......................................................................................................... 4, 8

§ 190. 3 ................................................................................................... 5, 6, 10

§ 190.4 ............................................................................................................. 5

Florida Statutes § 921.141 .................................................................................. 7

VI

TABLE OF AUTHORITIES

(continued)

Page

CONSTITUTIONAL PROVISIONS

United States Constitution

V Amendment ................................................................................................. 3

VI Amendment ....................................................................................... 3, 6, 9

XIV Amendment ..................................................................................... 3, 6, 9

1

STATEMENT

1.

On the night of March 1, 1992, petitioner Randall Clark Wall and

his co-defendant John Richard Rosenquist entered the San Diego home of

John and Katherine Oren, ransacked their home, killed the couple, and

Rosenquist sexually assaulted the Oren's 10 year-old great-grandson, before

fleeing in the Oren's car. Pet. App. A2-3. John Oren suffered stab wounds to

his neck and died from blunt force trauma to his head. Id. at A3. Katherine

Oren sustained fractured ribs and bruising on her arms, face, and back and

died from a large cut to her neck. Id. Wall met the Orens two years earlier

when he and their granddaughter were their guests for two weeks until

Katherine Oren accused Wall of stealing from her and insisted they leave. Id.

at A2. Wall confessed to breaking into the Oren home with Rosenquist in order

to steal the couple's money and car. See id. at A 7. Initially, Wall told detectives

that Rosenquist was the only one armed with a knife and the only one to strike

the couple with a metal bar, but the following day Wall admitted he was the

one who "clobbered the old lady" with a metal bar, and that Rosenquist gave

Wall his knife back before they left the Oren home and Wall used it to cut the

cord to the telephone. Id. at A 7-8.

The State charged Wall with the first-degree murders of John and

Katherine Oren, robbery, conspiracy to commit robbery, burglary, and

conspiracy to commit burglary. Pet. App. Al. The State also alleged four

"special circumstances" making Wall eligible for the death penalty: that he

committed multiple murders, and that the murders were committed while

2

lying in wait, in the commission of a robbery, and in the commission of a firstdegree burglary. Id. The prosecution further alleged that Wall personally used

a deadly weapon during the commission of the robbery, burglary, and one of

the murders. Id. Prior to trial Wall pleaded guilty to both of the murders,

robbery, conspiracy to commit robbery, burglary, conspiracy to commit

burglary, and admitted the truth of the four special circumstance allegations.

Id. at Al-2. The jury found true the allegations that Wall personally used a

deadly weapon in the commission of the robbery, the burglary, and one of the

murders. Id. at Al.

After the presentation of evidence at the subsequent penalty phase of the

trial, the jurors were instructed that, in selecting whether Wall would be

punished by death or life imprisonment without parole, they were to "consider,

take into account, and be guided by the applicable factors of aggravating and

mitigating circumstances"; that the "weighing of aggravating and mitigating

circumstances does not mean the mere mechanical counting of factors"; that

the jurors were "free to assign whatever moral or sympathetic value you deem

appropriate to each and all of the various factors"; and that to "render a

judgment of death, each of you must be persuaded that the aggravating

circumstances are so substantial in comparison with the mitigating

circumstances that it warrants death instead of life without parole." 35 RT

10954-10955. The jury returned a verdict of death. Pet. App. Al.

3

2.

On direct appeal, the California Supreme Court unanimously

affirmed Wall's conviction and death sentence. Pet. App. Al. As relevant here,

the court rejected Wall's claim that California's capital sentencing scheme is

unconstitutional because the jury is not required, before reaching a death

verdict, to find beyond a reasonable doubt that an aggravating circumstance

exists, that aggravating circumstances outweigh mitigating circumstances,

and that death is the appropriate penalty. Id. at A29-30. The court noted that

it had repeatedly rejected such claims in the past and has concluded that

"[c]hoosing between the death penalty and life imprisonment without the

possibility of parole is not akin to 'the usual fact-finding process,' and therefore

'instructions associated with the usual fact-finding process-such as burden of

proof-are not necessary"' and "unanimity with respect to aggravating factors

is not required by statute or as a constitutional procedural safeguard." Id. at

ASO.

ARGUMENT

Wall argues that California's death penalty system violates the right to

due process guaranteed by the Fifth and Fourteenth Amendments, and the

right to a jury trial guaranteed by the Sixth Amendment, because state law

does not require the penalty-phase jury to find unanimously and beyond a

reasonable doubt that an aggravating factor exists, that aggravation outweighs

any mitigating factors, and that aggravating factors are so substantial as to

make death the appropriate penalty. Pet. 6-17. This Court has repeatedly

4

denied review in cases presenting the same or similar questions, and there is

no reason for a different result here.1

1.

A California death sentence depends on a two-step process

prescribed by California Penal Code Sections 190.1 through 190.9. The first

stage involves determining whether the defendant committed first-degree

murder. That crime carries three potential penalties under California law:

a prison term of 25 years to life with the possibility of parole, a prison term of

life without the possibility of parole, or death. Cal. Penal Code § 190(a). The

penalties of death or life without parole may be imposed only if one or more

statutorily enumerated special circumstances "has been found under Section

190.4 to be true."

Id. § 190.2(a).

The defendant is entitled to a jury

1 See, e.g., Brooks v. California, No. 17-6237, cert. denied, 138 S. Ct. 516

(2017); Becerrada v. California, No. 17-5287, cert. denied, 138 S. Ct. 242 (2017);

Thompson v. California, No. 17-5069, cert. denied, 138 S. Ct. 201 (2017);

Landry v. California, No. 16-9001, cert. denied, 138 S. Ct. 79 (2017); Mickel v.

California, No. 16-7840, cert. denied, 137 S. Ct. 2214 (2017); Jackson v.

California, No. 16-7744, cert. denied, 137 S. Ct. 1440 (2017); Rangel v.

California, No. 16-5912, cert. denied, 137 S. Ct. 623 (2017); Johnson v.

California,. No. 15-7509, cert. denied, 136 S. Ct. 1206 (2016); Cunningham v.

California, No. 15-7177, cert. denied, 136 S. Ct. 989 (2016); Lucas v. California,

No. 14-9137, cert. denied, 135 S. Ct. 2384 (2015); Boyce v. California, No. 147581, cert. denied, 135 S. Ct. 1428 (2015); DeBose v. California, No. 14-6617,

cert. denied, 135 S. Ct. 760 (2014); Blacksher v. California, No. 11-7741, cert.

denied, 565 U.S. 1209 (2012); Taylor v. California, No. 10-6299, cert. denied,

562 U.S. 1013 (2010); Bramit v. California, No. 09-6735, cert. denied, 558 U.S.

1031 (2009); Morgan v. California, No. 07-9024, cert. denied, 552 U.S. 1286

(2008); Cook v. California, No. 07-5690, cert. denied, 552 U.S. 976 (2007);

Huggins v. California, No. 06-6060, cert. denied, 549 U.S. 998 (2006); Harrison

v. California, No. 05-5232, cert. denied, 546 U.S. 890 (2005); Smith v.

California, No. 03-6862, cert. denied, 540 U.S. 1163 (2004); Prieto v. California,

No. 03-6422, cert. denied, 540 U.S. 1008 (2003).

5

determination of such a special circumstance, and the jury's finding of a special

circumstance must be made unanimously and beyond a reasonable doubt. Id.

§ 190.4(a), (b). Here, Wall pleaded guilty to two first-degree murders and

admitted the truth of the four special circumstance allegations that he

committed multiple murders, and that the murders were committed while

lying in wait, in the commission of a robbery, and in the commission of a firstdegree burglary. Pet. App. Al. Thus, Wall waived his right to unanimous jury

findings beyond a reasonable doubt on the factors raised that rendered him

eligible for the death penalty.

The second stage of California's death penalty process proceeds under

California Penal Code Section 190.3. The jury hears evidence during a penalty

trial, allowing it to consider evidence "as to any matter relevant to aggravation,

mitigation, and sentence, including but not limited to" certain specified topics.

Cal. Penal Code § 190.3. "In determining the penalty," the jury must "take into

account any" of a list of specified factors "if relevant"-including "[a]ny ...

circumstance which extenuates the gravity of the crime even though it is not a

legal excuse for the crime." Id. With the exception of prior unadjudicated

violent criminal activity and prior felony convictions, the jury need not agree

unanimously on the existence of a particular aggravating circumstance, or find

the existence of such a circumstance beyond a reasonable doubt. See People v.

Romero, 62 Cal. 4th 1, 56 (2015); People v. Gonzales, 52 Cal. 4th 254, 328

(2011). If the jury "concludes that the aggravating circumstances outweigh the

6

mitigating circumstances," then it "shall impose a sentence of death." Cal.

Penal Code § 190.3.

If it "determines that the mitigating circumstances

outweigh the aggravating circumstances," then it "shall impose a sentence of

confinement in state prison for a term of life without the possibility of parole."

Id.

2.

Wall contends that he could not be constitutionally sentenced to

death unless the jury during the penalty phase found, unanimously and beyond

a reasonable doubt, that a particular aggravating factor existed, that the

aggravating circumstances outweighed those in mitigation, and that the

aggravating circumstances were so substantial as to make death the

appropriate penalty. Pet. 6-17. That is incorrect.

Wall primarily relies on the Sixth and Fourteenth Amendment rule that,

"[o]ther than the fact of a prior conviction, any fact that increases the penalty

for a crime beyond the prescribed statutory maximum must be submitted to a

jury, and proved beyond a reasonable doubt." Apprendi v. New Jersey, 530 U.S.

466, 490 (2000); see also Ring v. Arizona, 536 U.S. 584 (2002) (applying rule to

Arizona death penalty). Pet. 9. But under California law, once a jury finds

unanimously and beyond a reasonable doubt th_at a defendant has committed

first-degree murder with a special circumstance, the maximum potential

penalty prescribed by statute is death. See People v. Prince, 40 Cal. 4th 1179,

1297-1298 (2007); see generally Tuilaepa v. California, 512 U.S. 967, 975 (1994)

(a California defendant becomes "eligible for the death penalty when the jury

7

finds him guilty of first-degree murder and finds one of the § 190.2 special

circumstances true"). And where, as here, a defendant has admitted guilt, "[a]

guilty plea is, for most purposes, the legal equivalent of a verdict of guilty

reached by a jury." People v. Valladoli, 13 Cal. 4th 590, 601 (1996). Imposing

the maximum penalty on a defendant in these circumstances thus does not

violate the Constitution.

In arguing to the contrary, Wall relies on Hurst v. Florida, 136 S. Ct. 616,

619-622 (2016). Pet. 9-14. Under the Florida system considered in Hurst, after

a jury verdict of first-degree murder, a convicted defendant was not "eligible

for death," 136 S. Ct. at 622, unless the judge further determined that an

enumerated "aggravating circumstance[ ] exist[ed]," Fla. Stat. § 921.141(3).

The judge was thus tasked with making the '"findings upon which the sentence

of death [was] based,"' 136 S. Ct. at 622 (quoting Fla. Stat. § 921.141(3))determinations that were essentially questions of fact, see id. § 921.141(5)

(listing aggravating circumstances, such as whether the crime was committed

with a purpose of pecuniary gain). This Court held that Florida's system thus

suffered from the same constitutional flaw that Arizona's had in Ring: "The

maximum punishment" a defendant could receive without judge-made findings

"was life in prison without parole," and the judge "increased" that punishment

"based on [the judge's] own factfinding." 136 S. Ct. at 621.

In California, however, what makes a person eligible for a death sentence

is the jury's determination (or, as in this case, the defendant's admission) that

8

at least one of the special circumstances in Penal Code Section 190.2(a) is

present. That determination, which (absent a guilty plea) the jury must agree

on unanimously and beyond a reasonable doubt, is how California fulfills the

"constitutionally necessary function" of "circumscrib[ing] the class of persons

eligible for the death penalty." Zant v. Stephens, 462 U.S. 862, 878 (1983).

The jury's subsequent consideration of aggravating and mitigating

factors at the penalty phase fulfills a different function: that of providing an

"individualized determination ... at the selection stage" of who among the

eligible defendants deserves the death penalty. Zant, 462 U.S. at 879; see

People v. Moon, 37 Cal. 4th 1, 40 (2005) ("The penalty jury's principal task is

the moral endeavor of deciding whether the death sentence should be imposed

on a defendant who has already been determined to be 'death eligible' as a

result of the findings and verdict reached at the guilt phase.").

Such a

determination involves a choice between a greater or lesser authorized

penalty-not any increase in the maximum potential penalty. See Jones v.

United States, 526 U.S. 227, 249 (1999).

Kansas v. Carr, 136 S. Ct. 633 (2016), effectively forecloses Wall's

argument that determinations concerning the existence of aggravating or

. mitigating factors at this final selection stage must be made beyond a

reasonable doubt. As Carr reasoned, it is possible to apply a standard of proof

to the '"eligibility phase"' of a capital sentencing proceeding, "because that is a

purely factual determination." Id. at 642. In contrast, it is doubtful whether

9

it would even be "possible to apply a standard of proof to the mitigating-factor

determination (the

so-called 'selection phase' of a

capital-sentencing

proceeding)," because "[w]hether mitigation exists ... is largely a judgment

call (or perhaps a value call): what one juror might consider mitigating another

might not." Id.; see also, e.g., People v. Brown, 46 Cal. 3d 432, 456 (1988)

(California's sentencing factor regarding "'[t]he age of the defendant at the time

of the crime'" may be either a mitigating or an aggravating factor in the same

case: the defendant may argue for age-based mitigation, and the prosecutor

may argue for aggravation because the defendant was '"old enough to know

better'").

Carr likewise forecloses Wall's argument that the jury's final weighing of

aggravating versus mitigating circumstances should proceed under the

beyond-a-reasonable-doubt standard. In Carr, this Court observed that "the

ultimate question of whether mitigating circumstances outweigh aggravating

circumstances is mostly a question of mercy," and "[i]t would mean nothing ...

to tell the jury that the defendants must deserve mercy beyond a reasonable

doubt." 136 S. Ct. at 642. That reasoning leaves no room for Wall's argument

that such an instruction is required under the Sixth and Fourteenth

Amendments. Pet. 11-19.2

In this case, in any event, Wall presented almost nothing in the way of

mitigating evidence. See Pet. App. A6-8.

2

10

3.

Wall points to the Delaware Supreme Court's fractured decision in

Rauf v. State, 145 A.3d 430 (Del. 2016) as reason for this Court to consider

whether the beyond-a-reasonable-doubt standard should apply at California's

selection stage. Pet. 14. Raufs various opinions hold that a determination as

to the relative weight of aggravating and mitigating standards in the

application of Delaware's death penalty must be made beyond a reasonable

doubt. See 145 A.3d at 434 (per curiam); id. at 481-482 (Strine, J., concurring);

id. at 487 (Holland, J., concurring); but see id. at 487 (Valihura, J., dissenting).

The rationale of those opinions is not clear, and they notably fail to cite or

discuss this Court's reasoning on the issue in Carr. In any event, the most

notable feature of the Delaware law invalidated in Rauf was that the jury's

choice between a life sentence and death was completely advisory: the judge

could impose a sentence of death even if all jurors recommended against it, as

long as the jury had unanimously found the existence of a single aggravating

factor. See Del. Code tit. 11, § 4209(c)(3), (d)(l); Rauf, 145 A.3d at 457 (Strine,

J., concurring) (under Delaware law the judge "has the final say in deciding

whether a capital defendant is sentenced to death and need not give any

particular weight to the jury's view"). Under California law, the death penalty

may be imposed only if the jury has unanimously voted for death. See Cal.

Penal Code§ 190.3. It is by no means clear from the opinions in Rau/that that

11

court would have reached the same result ifit had considered California's quite

different statute.a

Wall also relies on the Florida Supreme Court's decision in Hurst v. State,

202 So. 3d 40, 57 (Fla. 2016). Pet. 13-14. Hurst holds that a death sentence

under Florida law may not ·be constitutionally imposed unless the jury

"unanimously and expressly find[s] all the aggravating factors that were

proven beyond a reasonable doubt, unanimously find[s] that the aggravating

factors are sufficient to impose death, unanimously find[s] that the

aggravating factors outweigh the mitigating circumstances, and unanimously

recommend[s] a sentence of death." 202 So. 3d at 57. By its own terms, the

decision

does

not recognize

a

right to

a beyond-a-reasonable-doubt

determination of anything other the existence of aggravating factors-the

Florida-law equivalent of the special circumstances that a California jury

Similar shortcomings undercut petitioner',s reliance on the opm10n

dissenting from the denial of certiorari in Woodward v. Alabama, 134 S. Ct.

405, 410-411 (2013), and on State v. Whitfield, 107 S.W. 3d 253 (Mo. 2003).

Pet. 14. The statutes at issue in Woodward and Whitfield allowed a judge to

impose the death penalty even where the jurors voted against it. See

Woodward, 134 S. Ct. at 406, 410-412 (jury's decision as to whether the

defendant should be executed was merely an "advisory verdict"); Whitfield, 107

S.W. 3d at 261-262 (judge imposed death sentence after jurors voted 11-1 for

life imprisonment). The Woodward dissent suggests that a trial judge's view

should not replace that of the jury-not that the death penalty may not be

imposed without the jury finding beyond a reasonable doubt that aggravating

factors outweigh mitigating factors. 134 S. Ct. at 410-411. To whatever extent

Whitfield held that the beyond-a-reasonable doubt standard should apply to

aggravating and mitigating factors, that ruling has been superseded by this

Court's analysis in Carr.

3

12

already finds beyond a reasonable doubt under California law when

determining eligibility for a death sentence. See Pet. 7. The Florida Supreme

Court's decision in Hurst t hus provides no reason to further r eview the

California Supreme Court's decision here.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

XAVIER BECERRA

Attorney Gen eral of California

EDWARD C. D UMONT

Solicitor General

GERALD A. ENGLER

Chief Assistant Attorney General

JULIE L. GARLAND

Senior Assistant Attorney General

GONZALO C. lVIARTINEZ

Supervising Deputy Attorney General

Counsel for Respondent

Dated: July 23, 2018