Opposition Brief — Michael Leon Bell, Petitioner v. California

No. 19-5394

Sn the Supreme Court of the Anited States

THE PEOPLE OF THE STATE OF CALIFORNIA,

Plaintiff and Respondent,

v.

MICHAEL LEON BELL,

Defendant and Appellant.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF CALIFORNIA

BRIEF IN OPPOSITION

XAVIER BECERRA

Attorney General of California

MICHAEL J. MONGAN

Solicitor General

MICHAEL P. FARRELL

Senior Assistant Attorney General

KENNETH N. SOKOLER

Supervising Deputy Attorney General

RYAN B. MCCARROLL

Deputy Solicitor General

KIMBERLEY A. DONOHUE

Deputy Attorneys General

WILLIAM K. Kim*

Deputy Attorneys General

2550 Mariposa Mall, Room 5090

Fresno, CA 93721

(559) 705-2321

*Counsel of Record

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.

ul

DIRECTLY RELATED PROCEEDINGS

Superior Court of the State of California, County of Stanislaus:

People v. Bell, No. 133269, judgment entered June 24, 1999 (this case

below).

Supreme Court of the State of California:

People v. Bell, No. S080056, judgment entered May 2, 2019 (this case

below);

In re Michael Leon Bell on Habeas Corpus, No. 229111 (state collateral

review) (reply to informal response to petition for writ of habeas

corpus filed June 16, 2017).

iii

TABLE OF CONTENTS

Page

SUALCITIETIE.....uneseennceoameneennensn ota dhucen Cov avaganaa MRE aes eR EES sacegcneeeamemmuuaersanies 1

ATPUTIOTE...........ccrnecenenrsereronneresneanoanenenenansnensaosisssandsles' ca sauaesidin Wied vesenureniieeesees 2

Conclusion .......ccccccccccscceeeseseeesssececeeeceseccusnsecereeessnecerececseseensnaceseseeeeeeesessaseeess 11

iv

TABLE OF AUTHORITIES

CASES

Apprendi v. New Jersey

530 U.S. 466 (2000) secsescscsnssncsnssusavsvavesessensseannesneeseaaveruacaararentens

Becerrada v. California

No. 17-5287, cert denied, 188 S. Ct. 242 (2017)...

Blacksher v. California

No. 11-7741, cert. denied, 565 U.S. 1209 (2012) 0... eee

Boyce v. California

No. 14-7581, cert. denied, 185 S. Ct. 1428 (2015)...

Bramit v. California

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

Brooks v. California

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

Case v. California

No. 18-7457, cert. denied, 139 S. Ct. 1842 (2019)... cee

Cook v. California

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

Cunningham v. California

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

DeBose v. California

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

Harrison v. California

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

Henriquez v. California

No. 18-5375, cert. denied, 139 S. Ct. 261 (2018)...

Huggins v. California

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

Hurst v. Florida

136 S. Ct. 616 (2016) cccssssvscessccscncsscenssessssceszsecentessancennereeeneencenes

Page

Vv

TABLE OF AUTHORITIES

(continued)

Page

Hurst v. State

202 So. Bd 40) (BMA. 201 G)......canenceeneencanneoned nade ssdand ener avis casera 10

Jackson v. California

No. 16-7744, cert. denied, 187 S. Ct. 1440 (2017)... ee cess ceeeeeseeseeee 38

Johnson v. California

No. 15-7509, cert. denied, 186 S. Ct. 1206 (2016)... eee cee cee eeeeeneeee 3

Jones v. United States

526 U.S. 227 (1999)......:.nc sressensxerecenaarasteer mera reremreneecnnmrnemerresreures 7

Kansas v. Carr

136 S. Ct. 683 (QOTE)..........cesncnernerrereennsenaneseenseatensundsibdadsed Cueva nniesadeads passim

Landry v. California

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

Lucas v. California

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

Mickel v. California

No, 16-7840;.cert. denied, 187 S. Ct: 2214 QOD) sccrcscsssvssossetossnnssssseccrneesvoes 3

Morgan v. California

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

Penunuri v. California

No. 18-6262, cert. denied, 1389 S. Ct. 644 (2018) ..... eee eecceeeeeeeeeetnseetenseeees 3

People v. Brown

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

People v. Gonzales

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

People v. Moon

37 Cal. 4th J (2005) sscisecesccencmererermernerawmreaneenerccmenarsenvisnsermns 7

People v. Prince

40 Cal. 4th 11°79 (2007)............ccececereasaiesnadsnsedsvenneannevviebeva sousavounessrsenenverecsenes 5

People v. Romero

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

vi

TABLE OF AUTHORITIES

(continued)

Page

Prieto v. California

No. 03-6422, cert. denied, 540 U.S. 1008 (2008) .......ceccieccceseeesecessecesnecennees 3

Rangel v. California

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

Rauf v. State

145 A.3d 480 (Del. 2016) ....cccccc ccc cccscccesccessecesscesccsasecessecetecssaeeeteseres 8,9

Ring v. Arizona

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

Smith v. California

No. 03-6862, cert. denied, 540 U.S. 1163 (2004) 00.0... ceecceeccceseesseesseeeeee 3

State v. Whitfield

107 S.W. 3d 253 (Mo. 2008)... cccceeccesscessessecsscesecsseeseecseceseseseessecssensessecs 9, 10

Taylor v. California

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

Thompson v. California

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

Tuilaepa v. California

512 U.S. 967 (1994). eee ccccccseceeseeeesseeeseccsesesecceseeesscessscesseeeessessteseness 5

Wall v. California

No. 17-9525, cert. denied, 139 S. Ct. 187 (2018) ......ceeceecceeseceessceseeeesseeeees 3

Woodward v. Alabama

B71 U.S. 1045 (2018)... ee eececeeseeseesseeeseesseesecesecnsceseecseseseseseseseesseenssensens 9, 10

Zant v. Stephens

462 U.S. 862 (1988)... ccccccccceeccessecesseceeseccssecessseesesesesesesess scevesuseeseeseesees 7

STATUTES

Delaware Code Title 11

$4209) (8) eccsscevosseewnsenereesseuenreanaaneyerersarnnconunneneenemanmeeerenneemenies 9

vii

TABLE OF AUTHORITIES

(continued)

Page

California Penal Code

§ 187 (A)...cceccrncseserercocsrsonensansusnnenensnnenssennsnnesoancnnasennases ns ite MUSES TeL EIEN 1

§ 190(A) seccssseseesessssssesssssssseessssssevesssesstessesssssieesecssssseeee 38

88 WOO, 0 BDL cccmmncconnnune-vismananseannsononscerstnnarenonensneennanrannerssensci SiS 3

§ 190.2(a) 0. eeeeeeeeeeeee 4,6

§ 190.2(a)(17)(A) & (G)o.eeececeeccecceeeeeeseeseesssessesscssesscsscessessessesssesesseesesseneeseeas 1

§ 190.8 occ ceeceeceeeneceeenesessessessescsscsscsssessecsscaeeseeseeaseeeesseeseeaeesecaeeaeed passim

§ 190.4 ceccscesessssssssecsesssssvssssssssvvesssssiessssssssiesesssssuesseessssiseceesssnseeessueeeeeesnneess 4

§ 190.4(a).... A

§ 190.40) oo. eeeeececececceeeeceeeceeeseeesesesscseeecseeecscsecscseessseeasseessssessesesseseeesneneeaenees 4

§ QLD cecceccccsseceesssssscssssvecsssseesssssesssssesssssusccessseceessusceessusecessuesesnneeeenaneeeesnneeessed 1

Florida Statutes

§ Q21.1AL(B) coeeeccscsecsssseecssssessssssessssssecssssuesesssseceessisceessneeeessneecesuneeeenteeessaneeeesses 6

§ 921,141 (5) ssssesssscessavervesssacosscsasievesecunsreseses veorersresnecevereasesanersarrersssersssewcnwoevens 6

CONSTITUTIONAL PROVISIONS

United States Constitution

Fifth Amendment issssesscsesssesicsenicsaaceexererecerersvassiccevensvevarsenscerevens

Sixth Amendment..........

Fourteenth Amendment...

Fourteenth Amendment

STATEMENT

1. Shortly before 4 a.m. on January 20, 1997, petitioner Michael Leon

Bell, wearing a ski mask and gloves, entered a convenience store with a

revolver in his hand. He dragged the store clerk, Simon Francis, behind the

counter to the cash register, which Francis opened. Bell ordered Francis to lie

face down on the floor, grabbed the cash from the register, and then shot

Francis twice in the back. Francis died as a result of the gunshots. Pet. App.

B 29.

The State charged Bell with, among other things, the robbery and murder

of Francis, and alleged as special circumstances that Bell committed the

murder while engaged in robbery and burglary. 1 CT 189-193; see Cal. Penal

Code §§ 187(a), 211, 190.2(a)(17)(A), (G).!

At the trial’s guilt phase, the jury convicted Bell of robbing and murdering

Francis, and found the robbery-murder and burglary-murder special

circumstances to be true. 4 CT 997-1001; 13 RT 2668-2672.

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

deciding whether to return a verdict of death as opposed to life in prison

without parole, they were to “consider, take into account and be guided by”

various aggravating and mitigating circumstances, if applicable; the “weighing

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

Reporter’s Transcript.

of aggravating and mitigating circumstances does not mean a mere mechanical

counting of factors”; 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 circumstances that it warrants death instead of life without parole.”

5 CT 1221-1224; 18 RT 3814-3815. The jury returned a verdict of death. 5 CT

1231; 19 RT 3837-3838.

2. The California Supreme Court affirmed the judgment on direct

appeal. Pet. App. B 28-58. As relevant here, the court rejected Bell’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. Pet. App. B 57.

ARGUMENT

Bell 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. 2-7, 11-22. In a footnote at the end of his petition,

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

factor must be found unanimously. Id. at 22 n.14. 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. A California death sentence depends on a two-stage process

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

stage, the guilt phase, 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

2 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, 1388 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, 1388 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, 1387S. Ct. 2214 (2017); Jackson v. California, No. 16-

7744, cert. dented, 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. 14-9187, 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. 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 (2008).

§ 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 [California Penal Code] section 190.4 to be true.” Cal. Penal Code §

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. Cal. Penal Code § 190.4(a), (b).

Here, during the guilt phase of Bell’s trial, the jury found him guilty of firstdegree murder, and found the robbery-murder and burglary-murder special

circumstances to be true. 4 CT 997-1001; 18 RT 2668-2672. The guilt-phase

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

standard. Pet. App. C 67-68.

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 “concludes that the aggravating

circumstances outweigh the mitigating circumstances,” then it “shall impose a

sentence of death.” California Penal Code section 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.” Jd.

2. Bell contends that he could not be constitutionally sentenced to

death unless the jury during the penalty phase found unanimously beyond a

reasonable doubt that a particular aggravating factor existed and that the

aggravating factors outweighed those in mitigation. Pet. 11-22 n.14. That is

incorrect.

Bell primarily relies (Pet. 2-7, 11-16) 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 ona

defendant once these jury determinations have been made thus does not

violate the Constitution.

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

619-622 (2016). Pet. 13-18. 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(8).

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 judgemade 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

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, 186 S. Ct. 633 (2016), effectively forecloses Bell’s

argument (Pet. 11-20) 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.” Jd. 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

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 Bell’s argument that the jury’s final weighing of

aggravating versus mitigating factors should proceed under the beyond-areasonable-doubt standard. Pet. 17-20. 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 _ that the defendants must deserve mercy beyond a reasonable

doubt.” 136 S. Ct. at 642. That reasoning leaves no room for Bell’s argument

that such an instruction is required under the Constitution.

3. Bell points to the Delaware Supreme Court’s fractured decision in

Rauf v. State, 145 A.3d 4380 (Del. 2016), as reason for this Court to consider

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

selection stage. Pet. 18. 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 4384 (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 the

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

analyzing California’s quite different statute.’

3 Similar shortcomings undercut Bell’s reliance on the opinion

dissenting from the denial of certiorari in Woodward v. Alabama, 571 U.S.

1045, 134 S. Ct. 405 (2013), and on State v. Whitfield, 107 S.W. 3d 253 (Mo.

2003). Pet. 18-19. 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 8S. Ct. at 406, 410-12 Gury’s decision as to whether the

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

10

Bell also relies on the Florida Supreme Court’s decision in Hurst v. State,

202 So. 3d 40, 57 (Fla. 2016). Pet. 18. 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.” Hurst v. State, 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.

//

/

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 410-11. And 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.

Dated: August 26, 2019

Respectfully submitted

XAVIER BECERRA

Attorney General of California

MICHAEL J. MONGAN

Solicitor General

MICHAEL FARRELL

Senior Assistant Attorney General

KENNETH N. SOKOLER

Supervising Deputy Attorney General

RYAN B. MCCARROLL

Deputy Solicitor General

KIMBERLEY A. DONOHUE

Deputy Attorney General

WILLIAM K. KIM

Deputy Attorney General

Counsel For Respondent

No. 19-5394

In the Supreme Court of the Anited States

THE PEOPLE OF THE STATE OF CALIFORNIA,

Plaintiff and Respondent,

MICHAEL LEON BELL,

Defendant and Appellant.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF CALIFORNIA

CERTIFICATE OF COMPLIANCE

As required by Supreme Court Rule 33.1(h), I certify that the Opposition

to Petition for Writ of Certiorari contains 2,195 words, excluding the parts of

the document that are exempted by Supreme Court Rule 33.1(d).

I declare under penalty of perjury that the foregoing is true and correct.

Dated: August 26, 2019

Respectfully submitted,

XAVIER BECERRA

iy, General of California

VILLIAM K. KIM

Deputy Attorney General

Counsel of Record

Counsel for Respondent

FR2019103931 / 33803108.docx

DECLARATION OF SERVICE BY U.S. MAIL

Case Name: In re Michael Bell on Habeas Corpus

No.: 19-5394

I declare:

Iam employed in the Office of the Attorney General, which is the office of a member of the

California State Bar, at which member’s direction this service is made. I am 18 years of age or

older and not a party to this matter; my business address is 2550 Mariposa Mall, Room 5090,

Fresno, CA 93721.

On August 26, 2019, I served the attached OPPOSITION TO PETITION FOR WRIT

CERTIORARI by placing a true copy thereof enclosed in a sealed envelope with postage

thereon fully prepaid, in the United States Mail at Fresno, California, addressed as follows:

Melissa Hill

Attorney at Law

P. O. Box 2758

Corrales, NM 87048-2758

Attomey for Petitioner Michael Leon Bell

I declare under penalty of perjury under the laws of the State of California the foregoing is true

and correct and that this declaration was executed on August 26, 2019, at Fresno, California.

W. Garber La i (ar bow

Declarant , Signature

FR2019103931

33803100.docx