Opposition Brief — Scott Thomas Erskine, Petitioner v. California
Supreme Court briefOct 29, 2019
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No. 19-6235
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SCOTT THOMAS ERSKINE,
Petitioner,
v.
THE STATE OF CALIFORNIA,
Respondent.
ON PETITION FOR A WRIT OF CERTIORARI TO CALIFORNIA SUPREME COURT
BRIEF IN OPPOSITION
XAVIER BECERRA
Attorney General of California
MICHAELJ. MONGAN
Solicitor General
LANCE E. WINTERS
Chief Assistant Attorney General
HELEN H. HONG
Deputy Solicitor General
HOLLY D. WILKENS
Supervising Deputy Attorney General
ROBIN URBANSKI*
Supervising Deputy Attorney General
600 West Broadway, Suite 1800
San Diego, CA 92101
(619) 738-9115
Robin.Urbanski@doj.ca.gov
*Counsel for Record
1
CAPITAL CASE
QUESTIONS PRESENTED
1.
Whether California's capital punishment system satisfies the
constitutional requirement that the death penalty may only be applied to a
narrowed subclass of murders.
2. 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.
11
DIRECTLY RELATED PROCEEDINGS
California Supreme Court:
People v. Erskine, No. 8127621, judgment entered July 10, 2019
(this case below).
In re Erskine on Habeas Corpus, California Supreme Court,
No. 8255619 (pending).
San Diego County Superior Court:
People v. Erskine, No. _SCD161649, judgment entered September 1,
2004 (this case below).
111
TABLE OF CONTENTS
Page
Statement ........................................................................................................ 1
Argument ......................................................................................................... 3
Conclusion ..................................................................................................... 14
iv
TABLE OF AUTHORITIES
Page
CASES
Apprendi u, New Jersey
530 U .s. 466 (2000) ........................................................................................ 9
Arave u. Creech
507 U. s. 463 (1993) ........................................................................................ 5
Becerrada u. California
No. 17-5287, cert denied, 138 S. Ct. 242 (2017) ............................................ 7
Bell u. California
No. 19-5394, cert. denied, 2019 WL 4922308
(U.S. Oct. 7, 2019) .......................................................................................... 7
Blacksher v. California
No. 11-7741, cert. denied, 565 U.S. 1209 (2012) ........................................... 7
Boyce u. California
No. 14-7581, cert. denied, 135 S. Ct. 1428 (2015) ......................................... 7
Bramit u. California
No. 09-6735, cert. denied, 558 U.S. 1031 (2009) ........................................... 7
Brooks u. California
No. 17-6237, cert. denied, 138 S. Ct. 516 (2017) ........................................... 7
Brown u. Sanders
546 U .s. 212 (2006) ........................................................................................ 3
Case u. California
No. 18-7457, cert. denied, 139 S. Ct. 1342 (2019) ......................................... 7
Cook u. California
No. 07-5690, cert. denied, 552 U.S. 976 (2007) ............................................. 7
Cunningham u. California
No. 15-7177, cert denied, 136 S. Ct. 989 (2016) ............................................ 7
DeBose u. California
No. 14-6617, cert. denied, 135 S. Ct. 760 (2014) ........................................... 7
V
TABLE OF AUTHORITIES
(continued)
Page
Furman v. Georgia
408 U.S. 238 (1972) .................................................................................... 3, 5
Gomez v. California
No. 18-9698, cert. denied, 2019 WL 4923284
(U.S. Oct. 7, 2019) .......................................................................................... 7
Harrison v. California
No. 05-5232, cert. denied, 546 U.S. 890 (2005) ............................................. 7
Henriquez v. California
No. 18-5375, cert. denied, 139 S. Ct. 261 (2018) ........................................... 7
Huggins v. California
No. 06-6060, cert. denied, 549 U.S. 998 (2006) ............................................. 7
Hurst v. Florida
136 S. Ct. 616 (2016) .................................................................................... 10
Jackson v. California
No. 16-7744, cert. denied, 137 S. Ct. 1440 (2017) ......................................... 7
Johnson v. California
No. 15-7509, cert. denied, 136 S. Ct. 1206 (2016) ......................................... 7
Jones v. United States
526 U.S. 227 (1999) ...................................................................................... 11
Kansas v. Carr
136 S. Ct. 633 (2016) ........................................................................ 11, 12, 13
Landry v. California
No. 16-9001, cert. denied, 138 S. Ct. 79 (2017) ............................................. 7
Lucas v. California
No. 14-9137, cert. denied, 135 S. Ct. 2384 (2015) ......................................... 7
Mickel v. California
No. 16-7840, cert. denied, 137 S. Ct. 2214 (2017) ......................................... 7
Morgan v. California
No. 07-9024, cert. denied, 552 U.S. 1286 (2008) ........................................... 7
Vl
TABLE OF AUTHORITIES
(continued)
Page
Penunuri v. California
No. 18-6262, cert. denied, 139 S. Ct. 644 (2018) ........................................... 7
People v. Brown
46 Cal. 3d 432 (1988) ................................................................................... 12
People v. Disa
1 Cal. App. 5th 654 (2016) ............................................................................. 5
People v. Gonzales
52 Cal. 4th 254 (2011) ................................................................................... 9
People v. Moon
3 7 Cal. 4th 1 (2005) ..................................................................................... 11
People v. Prince
40 Cal. 4th 1179 (2007) ................................................................................. 9
People v. Romero
62 Cal. 4th 1 (2015) ....................................................................................... 9
Prieto v. California
No. 03-6422, cert. denied, 540 U.S. 1008 (2003) ........................................... 7
Rangel v. California
No. 16-5912, cert. denied, 137 S. Ct. 623 (2017) ........................................... 7
Rauf v. State
145 A.3d 430 (Del. 2016) ....................................................................... 12, 13
Ring v. Arizona
536 U.S. 584 (2002) .................................................................................. 9, 10
Smith v. California
No. 03-6862, cert. denied, 540U.S.1163 (2004) ........................................... 7
Taylor v. California
No. 10-6299, cert. denied, 562 U.S. 1013 (2010) ........................................... 7
Thompson u. California
No. 17-5069, cert. denied, 138 S. Ct. 201 (2017) ........................................... 7
Tuilaepa v. California
512 U.S. 967 (1994) .................................................................................. 4, 10
Vll
TABLE OF AUTHORITIES
(continued)
Page
Wall v. California
No. 17 -9525, cert. denied, 139 S. Ct. 187 (2018) ........................................... 7
Woodward u. Alabama
134 S. Ct. 405 (2013) .............................................................................. 13, 14
Zant v. Stephens
462 U.S. 862 (1983) .................................................................................. 4, 11
STATUTES
Delaware Code
Title 11, § 4209(c)(3), (d)(l) ......................................................................... 13
California Penal Code
§ 187(a) ........................................................................................................... 1
§ 189 ··············································································································· 4
§ 190 ............................................................................................................... 4
§ 190(a) ........................................................................................................... 8
§§ 190.1-190.9 ································································································ 7
§ 190.2 ........................................................................................................ 2, 4
§ 190.2(a) .............................................................................................. 5, 8, 11
§ 190.2(a)(3) ................................................................................................... 1
§ 190.2(a)(l 7)(v) ............................................................................................. 1
§ 190.2(a)(l 7)(vi) ............................................................................................ 1
§ 190.2(a)(18) .................................................................................................. 1
§ 190.3 .................................................................................................. 8, 9, 13
§ 190.4 ............................................................................................................ 4
§ 190.4(a), (b) .................................................................................................. 8
Florida Statutes
§ 921.141(3) ................................................................................................... 10
§ 921.141(5) .................................................................................................. 10
CONSTITUTIONAL PROVISIONS
United States Constitution
V Amendment ............................................................................................ 3, 6
VI Amendment ....................................................................................... 3, 6, 9
VIII Amendment ........................................................................................ 3, 5
XIV Amendment .................................................................................... 3, 6, 9
1
STATEMENT
1.
In March 1993, authorities discovered the bodies of 9-year-old
Jonathan Sellers and 13-year-old Charles Keever. Pet. App. A-2, 3. Jonathan
was found hanging from a tree-nude from the waist down-with a rope
binding his ankles and a gag taped around his chin. Id. at 3-4. Charles was
found lying face down-also naked below the waist-with a rope and cord
tightly bound around his neck. Id. at 4. Charles suffered injuries that "would
have been painful", id.; Jonathan suffered scratches consistent with his effort
to pull the ligature off his neck, id. at 5. Examination of both boys revealed
the presence of sperm on Jonathan's scrotum and anus, and on an oral swab
taken from Charles. Id. at 5. Forensic analysis of the swabs matched a known
DNA sample from Petitioner Scott Thomas Erskine, who had sexually
assaulted, tortured, and murdered the two boys. Id. at 1-2, 5. The State
charged Erskine with two counts of first-degree murder, and alleged as special
circumstances that Erskine committed multiple murders, murdered the boys
while engaged in certain sexual offenses, and committed the murders by means
of torture.
Id. at 1-2; 11 CT 2588-2590; see Cal. Penal Code §§ l87(a),
190.2(a)(l 7)(v); 190.2(a)(l 7)(vi); 190.2(a)(l8); 190.2(a)(3). 1
2.
Erskine offered no evidence in his defense during the trial's guilt
phase, and the jury convicted Erskine as charged and found each of the special
1 CT refers to the trial court's Clerk's Transcript.
2
circumstance allegations true beyond a reasonable doubt, qualifying Erskine
for the death penalty. Pet. App. A 2; 17 CT 3978-3986; Cal. Penal Code § 190.2.
The jury deadlocked at the penalty phase, and the court declared a mistrial.
Pet. App. A 2.
At the retrial of the penalty phase, the trial court instructed the jurors
that, in deciding whether Erskine 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 circumstances that it warrants death instead
of life without parole." 92 RT 14951-14952. 2 The jury returned verdicts of
death on both counts. Pet. App. A 2.
3.
The California Supreme Court affirmed the convictions and death
judgment. Pet. App. A 1. As is relevant here, the court rejected Erskine's claim
that California Penal Code section 190.2 is unconstitutionally broad because it
fails to adequately narrow the class of murderers who are eligible for the death
2
RT refers to the Reporter's Transcript.
3
penalty. Id. at 34. The court also rejected Erskine'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 35.
ARGUMENT
1.
Erskine first contends that California's death penalty law violates
the Fifth, Sixth, Eighth, and Fourteenth Amendments by failing to adequately
narrow the class of death-eligible murderers.
Pet. 9-14.
The California
Supreme Court's rejection of that argument does not conflict with this Court's
precedent or with decisions of other courts, and no further review is
warranted.3
"Since Furman v. Georgia, 408 U.S. 238 (1972) (per curiam), [this Court
has] required States to limit the class of murderers to which the death penalty
may be applied." Brown v. Sanders, 546 U.S. 212, 216 (2006). "This narrowing
requirement is usually met when the trier of fact finds at least one statutorily
defined eligibility factor at either the guilt or penalty phase." Id. To satisfy
constitutional requirements, the eligibility factor "must genuinely narrow the
class of persons eligible for the death penalty and must reasonably justify the
3 This Court has denied review of this constitutional challenge to California's
death penalty laws. See, e.g., Rangel v. United States, No. 18-6818, cert. denied
135 S. Ct. 1264 (U.S. Feb. 25, 2019); Morales v. Brown, No. 05-23, cert. denied
126 S. Ct. 420 (U.S. Oct. 11, 2005).
4
imposition of a more severe sentence on the defendant compared to others
found guilty of murder." Zant v. Stephens, 462 U.S. 862, 877 (1983).
California's statutes fulfill this narrowing function in two stages. First,
out of all of those convicted of murder in California, the death penalty is
reserved only for those convicted of first-degree murder.
§§ 189, 190.
Cal. Penal Code
This requirement "genuinely narrow[s] the class of persons
eligible for the death penalty" and is part of how the State "reasonably
justif[ies] the imposition of a more severe sanction on the defendant compared
to others found guilty of murder." Zant, 462 U.S. at 877; see also Tuilaepa v.
California, 512 U.S. 967, 972 (1994) (eligibility factor must "not apply to every
defendant convicted of a murder; it must apply only to a subclass of defendants
convicted of murder").
Ignoring that step of California's narrowing process entirely, Erskine
instead focuses on the second step by which California narrows the pool of firstdegree murderers eligible for the death penalty. California law specifies that
a person convicted of first-degree murder is eligible for the death penalty only
if the jury has also found one or more statutory special circumstance proven
beyond a reasonable doubt. See Cal. Penal Code§§ 190.2, 190.4; pp. 6-7, infra.
Erskine argues that, in practice, most first-degree murders turn out to involve
at least one special circumstance, so that the special circumstance requirement
does not sufficiently narrow the class of death-eligible murderers. Pet. 12.
Even assuming that first-degree murders is the relevant pool for considering
5
the narrowing question, Erskine's contention does not show any constitutional
infirmity in California's system.
In Arave u. Creech, 507 U.S. 463 (1993), this Court considered whether
Idaho's "utter-disregard-for-human-life" aggravating circumstance provided
sufficient narrowing to satisfy Furman.
Idaho courts had interpreted that
aggravating circumstance as applying only if a defendant was a "cold-blooded,
pitiless slayer." Id. at 468-470. To evaluate the requirement's sufficiency as a
narrowing device, this Court asked whether "a sentencing judge reasonably
could find that not all Idaho capital defendants are 'cold-blooded."' Id. at 475476.
Because some murderers are not cold-blooded-but rather exhibit
feelings such as "anger, jealousy, revenge or a variety of other emotions"-this
Court concluded that the "cold-blooded, pitiless" construction had "narrowed
in a meaningful way the category of defendants upon whom capital
punishment may be imposed," as the Eighth Amendment requires. Id. at 476.
California's
law is similarly constitutional,
because its
special
circumstances leave room for a range of first-degree murders that a
"sentencing judge reasonably could find" do not qualify for the death penalty.
Compare, e.g., People v. Disa, l Cal. App. 5th 654, 660-661 (2016) (jealous
boyfriend choked victim to death during an argument), with Cal. Penal Code
§ 190.2(a) (list of special circumstances). Erskine identifies no decision, from
this Court or any other, holding that the special circumstances responsible for
his sentence are constitutionally insufficient. Indeed, in claiming that "almost
6
all first degree murders [are] eligible for the death penalty" in California, Pet.
12, Erskine suggests that the problem results from California's "particularly
overbroad" special circumstances for lying in wait and for murder in the course
ofa felony. Pet. 11. But Erskine was never charged with a lying-in-wait special
circumstance. See Pet. App. A 1-2. And although the jury did find that Erskine
committed his murders in the course of committing certain sex offenses, that
finding was not necessary to his death eligibility. The jury also unanimously
· concluded that Erskine was eligible for the death penalty because he "has been
convicted of more than one offense of murder in the first or second degree" and
because the "murder was intentional and involved the infliction of torture."
Cal. Penal Code §§ 190.2(a)(3), (a)(l8); Pet. App. A 2; 17 CT 3978-3986.
Erskine nowhere contends that those circumstances are not adequately
narrowing and appears to concede their sufficiency, as Arave commands. See
Pet. 12-13 (citing with apparent approval a proposal to reduce the number of
California's special circumstances but retain the multiple-murder and torturemurder special circumstances).
2.
Erskine next 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. Pet. 14-25. He
further suggests that, under the same constitutional principles, any
7
aggravating factor must be found unanimously. Pet. 22-23. This Court has
repeatedly denied review in cases presenting the same or similar questions,
and there is no reason for a different result here.4
a.
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,
4 See, e.g., Bell u. California, No. 19-5394, cert. denied, 2019 WL 4922308
(U.S.
Oct. 7, 2019); Gomez u. California, No. 18-9698, cert. denied, 2019 WL 4923284
(U.S. Oct. 7, 2019); Case u. California, No. 18-7457, cert. denied, 139 S. Ct.
1342 (2019); Penunuri u. California, No. 18-6262, cert. denied, 139 S. Ct. 644
(2018); Henriquez u. California, No. 18-5375, cert. denied, 139 S. Ct. 261
(2018); Wall u. California, No. 17-9525, cert. denied, 139 S. Ct. 187 (2018);
Brooks u. California, No. 17 -6237, cert. denied, 138 S. Ct. 516 (2017); Becerrada
u. California, No. 17 -5287, cert denied, 138 S. Ct. 242 (2017); Thompson u.
California, No. 17 -5069, cert. denied, 138 S. Ct. 201 (2017); Landry u.
California, No. 16-9001, cert. denied, 138 S. Ct. 79 (2017); Mickel u. California,
No. 16-7840, cert. denied, 137 S. Ct. 2214 (2017); Jackson u. California, No. 167744, cert. denied, 137 S. Ct. 1440 (2017); Rangel u. California, No. 16-5912,
cert. denied, 137 S. Ct. 623 (2017); Johnson u. California, No. 15-7509, cert.
denied, 136 S. Ct. 1206 (2016); Cunningham u. 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 u. California, No. 14-7581, cert. denied, 135 S. Ct.
1428 (2015); DeBose u. California, No. 14-6617, cert. denied, 135 S. Ct. 760
(2014); Blacksher u. California, No. 11-7741, cert. denied, 565 U.S. 1209 (2012);
Taylor u. California, No. 10-6299, cert. denied, 562 U.S. 1013 (2010); Bramit u.
California, No. 09-6735, cert. denied, 558 U.S. 1031 (2009); Morgan u.
California, No. 07-9024, cert. denied, 552 U.S. 1286 (2008); Cook u. California,
No. 07-5690, cert. denied, 552 U.S. 976 (2007); Huggins u. California, No. 066060, cert. denied, 549 U.S. 998 (2006); Harrison u. California, No. 05-5232,
cert. denied, 546 U.S. 890 (2005); Smith u. California, No. 03-6862, cert. denied,
540 U.S. 1163 (2004); Prieto u. California, No. 03-6422, cert. denied, 540 U.S.
1008 (2003).
8
a prison term oflife without the possibility of parole, or death. Cal. Penal Code
§ 190(a). The default sentence is a prison term of25 years to life. 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."
Cal. Penal Code § 190.2(a).
A 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). During the guilt phase of Erskine's trial, the jury
found him guilty of first-degree murder, and it found the torture-murder,
felony-murder, and multiple-murder special circumstances to be true. Pet.
App. A 2; 17 CT 3978-3986. The jury's findings were unanimous, under the
beyond-a-reasonable-doubt standard. 12 CT 2752, 2756, 2758, 2784.
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 "ifrelevant"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
9
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."
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 oflife without
the possibility of parole." Id.
b.
Erskine contends that the Constitution does not permit him to be
sentenced to death unless the jury during the penalty phase unanimously
found beyond a reasonable doubt that a particular aggravating factor existed.
Pet. 14-25. That is incorrect.
Erskine primarily relies (Pet. 15) on the Sixth and Fourteenth
Amendment rule that, "[i]f a State makes an increase m a defendant's
authorized punishment contingent on the finding of a fact, that fact-no matter
how the State labels it-must be found, by a jury beyond a reasonable doubt."
Ring v. Arizona, 536 U.S. 584, 602 (2002) (applying rule to Arizona death
penalty); see also Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). 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
10
Tuilaepa, 512 U.S. at 975 (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
unanimously and beyond a reasonable doubt thus does not violate the
Constitution.
In arguing to the contrary, Erskine relies on Hurst v. Florida, 136 S. Ct.
616, 619-622 (2016). Pet. 16-20. 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 circumstanceO 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.
11
In California, however, a defendant is eligible for a death sentence only
after the jury finds at least one of the special circumstances in California Penal
Code section 190.2(a). 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, 462 U.S. at 878.
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 Erskine's
argument (Pet. 14-23) 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
12
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
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 Erskine's argument that the jury's final weighing
of aggravating versus mitigating factors should proceed under the beyond-areasonable-doubt standard. Pet. 22-23. 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 Erskine's
argument that such an instruction is required under the Constitution.
c.
Erskine 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
13
selection stage. Pet. 20. Raufs 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 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 Rauf that the Delaware Supreme Court
would have reached the same result ifit had been analyzing California's quite
different statute.5
5 Similar shortcomings undercut Erskine's reliance on the opinion dissenting
from the denial of certiorari in Woodward v. Alabama, 134 S. Ct. 405, 410-411
(2013). Pet. 20. The statute at issue in Woodward allowed a judge to impose
14
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted,
XAVIER BECERRA
Attorney General of California
MICHAEL J. MONGAN
Solicitor General
L ANCE E. WINTERS
Chief Assistant Attorney General
HELEN H. HONG
Deputy Solicitor General
HOLLY D. WILKENS
Supervising Deputy Attorney General
~9-UC I/NJtUVY1i(
ROBIN URBANSKI
Supervising Deputy Attorney General
October 29, 2019
the death penalty even where t h e 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 a n "advisory verdict"). The Woodward dissent
su ggests that a trial judge's view should not replace t h at of the jury-not that
the death penalty may n ot be imposed without the jury finding beyond a
reasonable doubt t hat aggravating factors outweigh mitigating factors.
134 S. Ct. at 410-41 1.
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