Opposition Brief — Carl Devon Powell, Petitioner v. California

No. 18-8753

In the Supreme Court of the United States

CARL DEVON POWELL,

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

KENNETH N. SOKOLER

Supervising Deputy Attorney General

SEAN M. MCCOY

PAUL E. O'CONNOR*

Deputy Attorneys General

1300 I Street, Suite 125

P.O. Box 944255

Sacramento, CA 94244-2550

Telephone: (916) 210-7750

Paul.OConnor@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) ........................................................................................ 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

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

Case v. California

No. 18-7457, cert. denied, 139 S. Ct. 1342 (2019) ......................................... 3

Cook v. California

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

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, 139 S. Ct. 261 (2018) ........................................... 3

Huggins v. California

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

Hurst v. Florida

136 S.Ct. 616 (2016) ............................................................................. 2, 6, 10

iv

TABLE OF AUTHORITIES

(continued)

Page

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

Penunuri v. California

No. 18-6262, cert. denied, 139 S. Ct. 644 (2018) ........................................... 3

People v. Brown

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

People v. Gonzales

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

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) ........................................................................................ 4

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) ........................................................................................ 5

Wall v. California

No. 17-9525, cert. denied, 139 S. Ct. 187 (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) ............................................................................... 3, 4

CAL. PENAL CODE §§ 190.1 through 190.9 .......................................................... 3

CAL. PENAL CODE § 190.2(a) ............................................................................ 4, 6

vi

TABLE OF AUTHORITIES

(continued)

Page

CAL. PENAL CODE § 190.2(a)(17).......................................................................... 1

CAL. PENAL CODE § 190.3 ............................................................................ 4, 5, 9

CAL. PENAL CODE § 190.4 .................................................................................... 4

CAL. PENAL CODE § 190.4(b) ................................................................................ 4

DEL. CODE TITLE 11, § 4209(c)(3), (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

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STATEMENT

1. In January 1992, petitioner Carl Powell killed his former employer,

Keith McDade, by shooting him in the head at point-blank range. Pet. App. B

2. Powell also took money from McDade. Id.

The State charged Powell with the murder and robbery of McDade.

29CCT 8468-8469. 1 The State also alleged a special circumstance that made

Powell eligible for the death penalty: he murdered McDade during a robbery.

29CCT 8469; Cal. Penal Code § 190.2(a)(17). At the trial’s guilt phase, the jury

found Powell guilty of first-degree murder and robbery and found the special

circumstance allegation true. 2CT 594; 3CT 619, 673-684.

At the trial’s penalty phase, the jurors were instructed that, in deciding

whether Powell would be punished by death or life in prison without parole,

they were to “consider, take into account and be guided by” various aggravating

and mitigating circumstances, if applicable; that the “weighing of aggravating

and mitigating circumstances does not mean a mere mechanical counting of

factors”; that they 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

1 “CT” refers to the trial court Clerk’s Transcript.

Corrected Transcript.

“CCT” refers to the Clerk’s

2

circumstances that it warrants death instead of life without parole.” 3CT 742743, 772-773. The jury returned a verdict of death. Pet. App. B 1.

2. On direct appeal, the California Supreme Court affirmed the judgment

and death sentence. Pet. App. B 1, 77. As relevant here, the court rejected

Powell’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 factor has been proved and that

aggravating factors outweigh mitigating factors. Id. at 75. The court explained

that it had consistently rejected such claims and that its conclusions were not

altered by Hurst v. Florida, 136 S.Ct. 616 (2016). Pet. App. B 74, 75 & n.36.

ARGUMENT

Powell argues that California’s capital-sentencing scheme violates his

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

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

does not require the penalty-phase jury to find beyond a reasonable doubt that

an aggravating factor exists and that the factors in aggravation outweigh the

factors in mitigation. Pet. 9-21. In a footnote at the end of the petition, he

suggests that, under the same constitutional principles, any aggravating factor

must be found unanimously. Id. at 21 n.12. This Court has repeatedly denied

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review in cases presenting the same or similar questions, and there is no

reason for a different result here. 2

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, the

guilt phase, involves determining whether the defendant committed firstdegree 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

See, e.g., Case v. California, No. 18-7457, cert. denied, 139 S. Ct. 1342 (2019);

Penunuri v. California, No. 18-6262, cert. denied, 139 S. Ct. 644 (2018);

Henriquez v. California, No. 18-5375, cert. denied, 139 S. Ct. 261 (2018); Wall

v. California, No. 17-9525, cert. denied, 139 S. Ct. 187 (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. 167744, 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. 14-7581, 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. 066060, 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).

2

4

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 guilt phase of Powell’s trial, the jury found Powell

guilty of first-degree murder and found the robbery-murder special

circumstance to be true. 3CT 606, 616-619, 673-674, 679-680. The guilt-phase

findings were made unanimously and under the beyond-a-reasonable-doubt

standard. 2CT 594; 3CT 645.

The second stage of California’s death penalty trial process, the penalty

phase, proceeds under California Penal Code Section 190.3.

During the

penalty phase, the jury hears evidence which it is allowed to consider “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

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“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. Powell contends that he could not be constitutionally sentenced to

death unless the jury during the penalty phase found, beyond a reasonable

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

factors outweighed those in mitigation. Pet. 15-19. That is incorrect.

Powell primarily relies (Pet. 9-12) 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). 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.

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

6

defendant once these jury determinations have been made thus does not

violate the Constitution.

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

616, 619-622 (2016). Pet. 12-14. 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 Fla.

Stat. § 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 defendant eligible for a death

sentence is the jury’s determination that at least one of the special

circumstances in California Penal Code section 190.2(a) is present.

That

determination, which the jury must agree on unanimously and beyond a

reasonable doubt, is part of how California fulfills the “constitutionally

7

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 Powell’s

argument (Pet. 10-14) that determinations concerning the existence of

aggravating or mitigating factors at the penalty-selection phase 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 it would even be “possible to apply a standard of proof to the

mitigating-factor determination (the so-called ‘selection phase’ of a capitalsentencing proceeding),” because “[w]hether mitigation exists … is largely a

8

judgment call (or perhaps a value call):

what one juror might consider

mitigating another might not.” Id.; see, 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 Powell’s argument that the jury’s final weighing

of aggravating versus mitigating factors should proceed under the beyond-areasonable-doubt standard. Pet. 15-19. 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 Powell’s argument

that such an instruction is required under the Constitution.

3. Powell 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. 17. 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

9

(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 the

Delaware Supreme Court would have reached the same result if it had been

analyzing California’s quite different statute. 3

Similar shortcomings undercut Powell’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. 17-18. 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

3

10

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

State, 202 So. 3d 40, 57 (Fla. 2016). Pet. 17. 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. The Florida Supreme Court’s

decision in Hurst thus provides no reason for further review.

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.

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

KENNETH N. SOKOLER

Supervising Deputy Attorney General

SEAN M. MCCOY

Deputy Attorney General

/S/ Paul E. O’Connor

PAUL E. O’CONNOR

Deputy Attorney General

Dated: June 10, 2019

SA2019101595

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