Opposition Brief — Richard Penunuri, Petitioner v. California

No. 18-6262

In the Supreme Court of the United States

RICHARD PENUNURI,

Petitioner,

v.

STATE OF CALIFORNIA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF CALIFORNIA

BRIEF IN OPPOSITION

XAVIER BECERRA

Attorney General of California

EDWARD C. DUMONT

Solicitor General

GERALD A. ENGLER

Chief Assistant Attorney General

LANCE E. WINTERS

Senior Assistant Attorney General

MICHAEL R. JOHNSEN

Deputy Solicitor General

E. CARLOS DOMINGUEZ*

Deputy Attorney General

300 South Spring Street, Suite 1702

Los Angeles, CA 90013

(213) 269-6120

Carlos.Dominguez@doj.ca.gov

*Counsel of Record

i

CAPITAL CASE

QUESTION PRESENTED

Whether the Constitution requires that a California jury that has

already found unanimously and beyond a reasonable doubt that the

defendant committed an offense whose special characteristics render the

crime eligible for the death penalty must also, in order to render a verdict of

death, unanimously find beyond a reasonable doubt that specific aggravating

factors exist and that they outweigh mitigating factors.

ii

TABLE OF CONTENTS

Page

STATEMENT ..................................................................................................1

ARGUMENT ....................................................................................................2

CONCLUSION ..............................................................................................11

iii

TABLE OF AUTHORITIES

Page

CASES

Apprendi v. New Jersey

530 U.S. 466 (2000) .................................................................................... 2, 5

Becerrada v. California

No. 17-5287, cert denied, 138 S. Ct. 242 (2017) ............................................ 3

Blacksher v. California

No. 11-7741, cert. denied, 565 U.S. 1209 (2012) ........................................... 3

Blakely v. Washington

542 U.S. 296 (2004) ........................................................................................ 2

Boyce v. California

No. 14-7581, cert. denied, 135 S. Ct. 1428 (2015) ......................................... 3

Bramit v. California

No. 09-6735, cert. denied, 558 U.S. 1031 (2009) ........................................... 3

Brooks v. California

No. 17-6237, cert. denied, 138 S. Ct. 516 (2017) ........................................... 3

Cook v. California

No. 07-5690, cert. denied, 552 U.S. 976 (2007) ............................................. 3

Cunningham v. California

549 U.S. 270 (2007) ........................................................................................ 2

Cunningham v. California

No. 15-7177, cert denied, 136 S. Ct. 989 (2016) ............................................ 3

DeBose v. California

No. 14-6617, cert. denied, 135 S. Ct. 760 (2014) ........................................... 3

Harrison v. California

No. 05-5232, cert. denied, 546 U.S. 890 (2005) ............................................. 3

Henriquez v. California

No. 18-5375, cert. denied, 2018 WL 3611046 (Oct. 1, 2018) ......................... 3

Huggins v. California

No. 06-6060, cert. denied, 549 U.S. 998 (2006) ............................................. 3

iv

TABLE OF AUTHORITIES

(continued)

Page

Hurst v. Florida

136 S. Ct. 616 (2016) ................................................................................ 6, 10

Hurst v. State

202 So. 3d 40 (Fla. 2016).............................................................................. 10

Jackson v. California

No. 16-7744, cert. denied, 137 S. Ct. 1440 (2017) ......................................... 3

Johnson v. California

No. 15-7509, cert. denied, 136 S. Ct. 1206 (2016) ......................................... 3

Jones v. United States

526 U.S. 227 (1999) ........................................................................................ 7

Kansas v. Carr

136 S. Ct. 633 (2016) ........................................................................ 7, 8, 9, 10

Landry v. California

No. 16-9001, cert. denied, 138 S. Ct. 79 (2017) ............................................. 3

Lucas v. California

No. 14-9137, cert. denied, 135 S. Ct. 2384 (2015) ......................................... 3

Mickel v. California

No. 16-7840, cert. denied, 137 S. Ct. 2214 (2017) ......................................... 3

Morgan v. California

No. 07-9024, cert. denied, 552 U.S. 1286 (2008) ........................................... 3

People v. Brown

46 Cal. 3d 432 (1988) ..................................................................................... 8

People v. Gonzales

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

People v. Moon

37 Cal. 4th 1 (2005) ........................................................................................ 7

People v. Prince

40 Cal. 4th 1179 (2007) .................................................................................. 5

People v. Romero

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

v

TABLE OF AUTHORITIES

(continued)

Page

Prieto v. California

No. 03-6422, cert. denied, 540 U.S. 1008 (2003) ........................................... 3

Rangel v. California

No. 16-5912, cert. denied, 137 S. Ct. 623 (2017) ........................................... 3

Rauf v. State

145 A.3d 430 (Del. 2016) ............................................................................ 8, 9

Ring v. Arizona

536 U.S. 584 (2002) .................................................................................... 5, 6

Smith v. California

No. 03-6862, cert. denied, 540 U.S. 1163 (2004) ........................................... 3

State v. Whitfield

107 S.W. 3d 253 (Mo. 2003) ..................................................................... 9, 10

Taylor v. California

No. 10-6299, cert. denied, 562 U.S. 1013 (2010) ........................................... 3

Thompson v. California

No. 17-5069, cert. denied, 138 S. Ct. 201 (2017) ........................................... 3

Tuilaepa v. California

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

Wall v. California

No. 17-9525, cert. denied, 2018 WL 3146718 (Oct. 1, 2018) ......................... 3

Woodward v. Alabama

134 S. Ct. 405 (2013) ................................................................................ 9, 10

Zant v. Stephens

462 U.S. 862 (1983) ........................................................................................ 7

STATUTES

Cal. Penal Code § 190(a) ..................................................................................... 4

Cal. Penal Code § 190.1 ....................................................................................... 3

Cal. Penal Code § 190.2(a) .............................................................................. 4, 7

vi

TABLE OF AUTHORITIES

(continued)

Page

Cal. Penal Code § 190.3............................................................................... 4, 5, 9

Cal. Penal Code § 190.4 ....................................................................................... 4

Cal. Penal Code § 190.4(a) .................................................................................. 4

Cal. Penal Code § 190.4(b) .................................................................................. 4

Cal. Penal Code § 190.5 ....................................................................................... 3

Cal. Penal Code § 190.6 ....................................................................................... 3

Cal. Penal Code § 190.7 ....................................................................................... 3

Cal. Penal Code § 190.8 ....................................................................................... 3

Cal. Penal Code § 190.9 ....................................................................................... 3

Del. Code Title 11, § 4209(c)(3) ........................................................................... 9

Del. Code Title 11, § 4209(d)(1)........................................................................... 9

Fla. Stat. § 921.141(3) ......................................................................................... 6

Fla. Stat. § 921.141(5) ......................................................................................... 6

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. V .......................................................................................... 2

U.S. Const. amend. VI ......................................................................................... 2

U.S. Const. amend. XIV .................................................................................. 2, 5

1

STATEMENT

1. In October 1997, petitioner Richard Penunuri, acting with fellow gang

members, shot and killed Brian Molina and Michael Murillo. Pet. App. A1-A7.

From December 1997 through January 1999, while awaiting trial in jail,

Penunuri made several phone calls to other gang members in which he

expressed his fear that Jaime Castillo, a gang member who was present on the

night of the shooting, was going to talk to the police. Pet. App. A7-A8. Over

the course of these phone calls, Penunuri made it clear that he wanted Castillo

to be killed. Id. at A8. On January 14, 1999, several gang members drove

Castillo into the San Gabriel Mountains and killed him. Id.

The State charged Penunuri with the first-degree murders of Molina,

Murillo, and Castillo, and conspiracy to murder Castillo. Pet. App. A1. The

State also alleged two “special circumstances” making Penunuri eligible for the

death penalty: that he had committed multiple murders and that one of the

murders was committed to prevent a witness from testifying. Id. At the guilt

phase of the trial, the jury convicted Penunuri of all the charges and found true

both of the special-circumstance allegations. Id.

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

trial, the jurors were instructed that, in selecting whether Penunuri 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 a mere mechanical counting of factors”; that they

2

were “free to assign whatever moral or sympathetic value you deem

appropriate to each and all of the various factors”; and that to “return 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.” 30 RT

4467-4469. The jury returned a verdict of death. Pet. App. A1.

2. On direct appeal, the California Supreme Court affirmed Penunuri’s

conviction and death sentence. Pet. App. A2, A61. As relevant here, the court

rejected Penunuri’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 A58. The court noted that it

had repeatedly rejected such claims in the past and that its conclusions were

not altered by the reasoning of Apprendi v. New Jersey, 530 U.S. 466 (2000),

Ring v. Arizona, 530 U.S. 466 (2002), Blakely v. Washington, 542 U.S. 296

(2004), and Cunningham v. California, 549 U.S. 270 (2007). Id.

ARGUMENT

Penunuri 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 and that aggravation

3

outweighs any mitigating factors. Pet. 7-14. In a footnote at the end of the

petition, he also suggests that, under the same constitutional principles,

aggravating factors must be found unanimously. Id. at 14 n.10. This Court

has repeatedly 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

See, e.g., Henriquez v. California, No. 18-5375, cert. denied, 2018 WL

3611046 (Oct. 1, 2018); Wall v. California, No. 17-9525, cert. denied, 2018 WL

3146718 (Oct. 1, 2018); 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).

1

4

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 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).

During the first stage of Penunuri’s trial, the jury found him guilty of three

counts of first-degree murder and also found true the special circumstance

allegations that he committed multiple murders and that one of the murders

was committed for the purpose of preventing a witness from testifying. Pet.

App. A1. The jury was unanimous and its findings were made beyond a

reasonable doubt. 30 RT 4511-4515.

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

5

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

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. Penunuri 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 and that the

aggravating circumstances outweighed those in mitigation. Pet. 7-14. That is

incorrect.

Penunuri 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. 7-9. But under California law,

once a jury finds unanimously and beyond a reasonable doubt that 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.

6

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 finds him guilty of first-degree murder and finds one of the

§ 190.2 special circumstances true”). Imposing that maximum penalty on a

defendant once these jury determinations have been made thus does not

violate the Constitution.

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

616, 619-622 (2016). Pet. 8-13. 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 that at least one of the special circumstances in

7

Penal Code section 190.2(a) is present. That determination, which 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 Penunuri’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

8

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 Penunuri’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

Penunuri’s argument that such an instruction is required under the

Constitution. Pet. 9-14.

3. Penunuri 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

9

selection stage. Pet. 12. Rauf’s various opinions hold that a determination as

to the relative weight of aggravating and mitigating factors 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)(1); 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 Rauf that that

court would have reached the same result if it had considered California’s quite

different statute. 2

Similar shortcomings undercut petitioner’s reliance on the opinion

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

2

10

Penunuri also relies on the Florida Supreme Court’s decision in Hurst v.

State, 202 So. 3d 40, 57 (Fla. 2016). Pet. 11. 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

already finds beyond a reasonable doubt under California law when

determining eligibility for a death sentence. See pp. 3-4, supra. The Florida

Supreme Court’s decision in Hurst thus provides no reason for further review

of the California Supreme Court’s decision here.

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 10-11. 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.

11

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted

XAVIER BECERRA

Attorney General of California

EDWARD C. DUMONT

Solicitor General

GERALD A. ENGLER

Chief Assistant Attorney General

LANCE E. WINTERS

Senior Assistant Attorney General

MICHAEL R. JOHNSEN

Deputy Solicitor General

E. CARLOS DOMINGUEZ

Deputy Attorney General

Counsel for Respondent

November 6, 2018