Petition for Writ of Certiorari — California v. Parwez

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IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1988

THE PEOPLE OF THE STATE OF CALIFORNIA,

PETITIONER,

KHALID PARWEZ,

RESPONDENT.

PETITION FOR WRIT OF CERTIORARI

IRA REINER

District Attorney ~

County of Los Angeles

HARRY B. SONDHEIM*

Head Deputy

Appellate Division

BRENT RIGGS

Deputy District Attorney

849 South Broadway, Suite 1100

Los Angeles, California 90014-3570

Telephone: (213) 974-5911

*Counsel of record

QUESTION PRESENTED FOR REVIEW

Is an attempt by the State of California to use the words

"especially heinous, atrocious and cruel," in describing a murder

for which the murderer is eligible for the death penalty,

prevented by either the Eighth Amendment or limitations on

vagueness emanating from the Due Process Clause of the 14th

Amendment?

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW

TABLE OF CONTENTS

TABLE OF AUTHORITIES

PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW - RULE 21.1(d)

JURISDICTION - RULE 21.1(e)

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED - RULE 21.1(f)

STATEMENT OF THE CASE - RULE 21.1(g), (h)

REASONS FOR ALLOWANCE

OF THE WRIT - RULE 21.1(j)

CONCLUSION

APPENDIX

Opinion and judgment below

State Supreme Court’s denial of review

Stay of remittitur

California Penal Code Section 190.2

iil

ili

California Penal Code Section 871.5

Letter to Court of Appeal

i an in eta tanta es

TABLE OF AUTHORITIES

CASES Pages

Adamson v. Ricketts, — F.2d __

(9th Cir. 1988) (No. 84-2069) 13

Allen v. Superior Court 113 Cal.App.3d 42

(1980) 8

American Railway Express Co. v. Levee, 263 U.S. 19

(1923) 2

Auto Equity Sales, Inc. v. Superior Court,

57 Cal.2d 450 (1962) 5

California v. Krivda, 409 U.S. 33

(1972) 9

California v. Superior Court, 449 U.S. 945

(1980) pial 8, 14

Cavanaugh v. State, 729 P.2d 481

(Nev. 1986) 13

Ex parte Kyzer, 399 So.2d 330

(Ala. 1981) 13

Furman v. Georgia, 408 U.S. 238

(1972) = 11

Gray v. Lucus, 677 F.2d 1086

(Sth Cir. 1982) 13

Hance v. State, 245 Ga. 856

- (1980) 13

Hargrove v. Wainwright, 804 F.2d 1182

(11th Cir. 1986) 13

Holtan v. Black, 838 F.2d 984

(8th Cir. 1988) 13

Hopkinson v. State, 632 P.2d 79

(Wyo. 1981) 13

In re Dennis M. 70 Cal.2d 444

(1969) . 12

Jones v. Commonwealth, 228 Va. 427

(1984) 13

Lowenfield v. Phelps, 484 U.S.

(1988) (No. 86-6867) 10

Maynard v. Cartwright, — U.S. __

(1988) (No. 87-519) 6, 13

Michigan v. Long, 463 U.S. 1032

(1983) 7, 10

People v. Bean, 46 Cal.3d 929

(1988) 11

People v. Frierson, 25 Cal.3d 142

(1979) 9

People v. Superior Court (Engert), 31 Cal.3d 797

(1982) 1, 2, 4-14

| |

Proffitt v. Florida, 428 U.S. 242

(1976) ——-

Rault v. Butler, 826 F.2d 299

(Sth Cir. 1987)

State v. Dixon, 283 So.2d 1

(Fla. 1973)

State v. English, 367 So.2d 815

(La. 1979)

State v. Goodman, 257 S.E.2d 569

(N.C. 1979)

State v. Gretzler, 659_P.2d 1

(Ariz. 1983)

State v. Griffen, 756 S.W.2d 475

(Mo. banc 1988)

State v. Osborn, 631 P.2d 187

(Idaho 1981)

State v. Palmer, 399 N.W.2d 706

(Neb. 1986)

State v. Ramseur, 106 N.J. 123

(1987)

State v. Williams, 690 S.W.2d 517

(Tenn. 1985)

Stouffer v. State, 742 P.2d 562

(Okl. Cr. 1987)

Vii comers

7, 9, 10, 12, 13

13.

Turner v. Bass, 753 F.2d 342 —

(4th Cir. 1985) 13

Turner v. Murray, 476 U.S. 28

(1985) 13

Washington v. State, 361 So.2d 61

(Miss. 1978) 13

UNITED STATES CONSTITUTION

lst Amendment 12

8th Amendment 5, & Bt

14th Amendment i, 1, 3, 6-8

CALIFORNIA CONSTITUTION

article I, section 27 9

STATUTES

UNITED STATES CODE

§ 1257(3) 2

§ 2403(b) 2

CALIFORNIA PENAL CODE

§ 190.2

§ 190.2(a)

§ 190.2(a)(14)

§ 190.4

§ 871.5

§ 871.5(a)

§ 1004

§ 1008

OTHER STATES

ALABAMA CRIM. CoDE, 13A-5-49

ARIZONA CRIM. Cob, 13-703(f)(g)

ARKANSAS STATS., 5-4-604

CoLorRADO REV. SraTs., 16-11-103(6)(g)

ConnecTICUT PEN. Cope, 53a-46a(n)

FLORIDA Srats., (4)921.141(5)(h)

IDAHO StTatTs., 19-2515(g)(5)

ILLINOIS CRIM. CopDE, ch. 38, 9-1(b)(7

LOUISIANA CODE CRIM. PRoc., art. 905.4(g)

MississipP! CODE ANN., 99-19-101(5)(h)

NEBRASKA Rev. STATs., 29-2523(1)(d)

New HAMPSHIRE CRIM. Cope, 630:5(II)(a)(7)

NorTH CAROLINA GEN. STaTs., 15A-2000(e)(9)

OKLAHOMA SratTs. ANN., Tit. 21-701.12(4)

TENNESSEE CODE ANN., 39-2-203(1)(5

UTAH CobE ANN., 76-5-202(1)(g)

WyYomMING Srats., 6-2-102(h)(vii).)

MISCELLANEOUS

UNITED STATES SUPREME COURT RULES

17.1(c)

21.1(d)

21.1(e)

21.1(f)

21.1{g) :

21.1(h) 4

21.1(j) 6

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1988

THE PEOPLE OF THE STATE OF CALIFORNIA,

PETITIONER,

KHALID PARWEZ,

RESPONDENT.

PETITION FOR WRIT OF CERTIORARI

The People of the State of California petition this Court

for a writ of certiorari to review the judgment and unpublished

opinion of the Court of Appeal for the State of California,

Second Appellate District, Division Five, which, as the basis

for its judgment, relied upon an earlier opinion of the

Supreme Court of the State of California in a case entitled

People v. Superior Court (Engert), 31 Cal.3d 797 (1982), herein-

after, Engert. The decision by the state Supreme Court in

Engert, which governed the Court of Appeal in this case, rests

upon an intertwining of federal and state grounds. This case

therefore involves a federal question, namely, can a state

statute, without violating the Eighth Amendment or the

limitations on vagueness emanating from the Due Process

clause of the Fourteenth Amendment, make a criminal defen-

dant in a murder case eligible for the death penalty when the

murder was "especially heinous, atrocious, and crucl"?

The Court of Appeal in this case was bound by Engert, which

said, "No." However, the People of the state contend that

such a provision, passed by the electorate as an amendment to

the California Penal Code in a statewide election, can co-exist

with the United States Constitution.

ef OPINIONS BELOW - RULE 21.1(d)

The unpublished opinion of the California Court of

Appeal is contained in the appendix at pages A-1 to A-3.

The order of the California Supreme Court denying the

petition for review of the opinion of the Court of Appeal is

contained in the appendix at page A-4. The order of the

Court of Appeal staying issuance of the remittitur is contained

in the appendix at page A-S.

JURISDICTION - RULE 21.1(e)

The California Court of Appeal, Second Appellate

District, Division Five, entered its judgment and opinion on

September 13, 1988. On October 19, 1988, the People filed

a timely petition for review with the California Supreme Court.

On December 22, 1988, the petition for review was denied.

Title 28, United States Code, section 1257(3), confers jurisdic-

tion on the Court in this case. Title 28, United States Code,

section 2403(b), may be applicable.

Where the highest state court has jurisdiction to review a

decision of a lower state court, but refuses to do so, the time

for petitioning for a writ of certiorari runs from the date of

the higher court’s refusal to review. American Railway Express

Co. v. Levee, 263 U.S. 19, 20-21 (1923). Since filed within 60

of the California Supreme Court’s denial of review, this

petition is timely.

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CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED - RULE 21.1(f)

"Excessive bail shall not be required, nor excessive fines

imposed, nor cruel aad unusual punishments inflicted." U.S.

Const. amend. VIII.

"[N]Jor shall any State deprive any person of life, liberty,

or property, without due process of law... .". U.S. Const.

amend. XIV, § 1.

"A person may not be deprived of life, liberty or property

without due process of law... ." CAL. Const., art. I, § 7(a).

"Persons may not . . . be deprived of life, liberty, or

property without due process of law." CaL. Const., art. I, §

15, &. 7.

"The penalty for a defendant found guilty of murder in

the first degree shall be death or confinement in state prison

for a term of life without the possibility of parole in any case

in which one or more of the following special circumstances

has been charged and specially found under Section 190.4, to

be true:

"(14) The murder was especially heinous, atrocious, or

cruel, manifesting exceptional depravity, as utilized in this

section, the phrase especially heinous, atrocious or cruel

manifesting exceptional depravity means a conscienceless, or

pitiless crime which is unnecessarily torturous to the victim."

CaL. PEN. Cope § 190.2(a)(14).'

1. The full text of section 190.2 is set forth verbatim at pages A-6 to

A-10.

"When an action is dismissed by a magistrate pursuant to

Section .. . 1008... . or a portion is dismissed pursuant to

those same sections . . . , the prosecutor may make a motion

in the superior court within 15 days to compel the magistrate

to reinstate the complaint or a portion thereof... ." CAL.

PEN. CoDE § 871.5(a).”

"The defendant may demur to the accusatory pleading at

any time prior to the entry of a plea, when it appears upon

the face thereof either:

"4. That the facts stated do not constitute a public

offense ...." CAL. PEN. Cope § 1004.

STATEMENT OF THE CASE - RULE 21.1(g), (h)

A felony complaint filed in the Municipal Court of the

Pomona Judicial District, County of Los Angeles, charging

respondent Parwez with the murder of Rahael Parwez alleged,

as a special circumstance making respondent eligible for the

death penalty, that "the murder was especially heinous, atro-

cious and cruel." CT 1A, 5, 17.4 No other allegation makes

respondent eligible for the death penalty. The magistrate

sitting in that court sustained respondent’s demurrer to the

special circumstance allegation. CT 4, 19, 22-26. Parwez

argued in support of his demurrer that the state supreme court

had found in Engert that subdivision (a)(14) of section 190.2,

describing the special circumstance with which the complaint

charged him, violated the Due Process clauses of both the

United States Constitution and the California Constitution,

2. The full text of section 871.5 is set forth verbatim at pages A-11 to

A-13 of the appendix.

3. Cat. Pen. Cope § 190.2(a)(14). All further statutory references are

to the California Penal Code, except as otherwise noted.

4. References are to pages of the Clerk’s Transcript on Appeal, CT, and

the Reporter’s Transcript on Appeal, RT.

CT 24-25, and that the lower state courts were bound to

follow the decision of the California Supreme Court. CT 26.

Upon review of the magistrate’s ruling on a motion

brought by the People pursuant to section 871.5, the Los

Angeles County Superior Court refused to compel the magis-

trate to reinstate the special circumstance allegation. CT 9-16,

32; RT 5. The motion by the People was based upon the —

argument that subdivision (a)(14) of section 190.2 is constitu-

tional. CT 13-14. Both the magistrate and the Superior Court

judge concluded that the state supreme court’s decision in

Engert, holding that subdivision (a)(14) of section 190.2

violated the federal and state constitutions, barred the special

circumstance allegation. Appendix, p. A-2.

The People appealed on the ground that the California

Supreme Court’s decision in Engert was erroneous. Appendix,

p. A-2. The appeal went to Division Five of the California

Court of Appeal, Second District. In that court, the parties

stipulated that, as required by state law,’ the decision of the

highest state court, in Engert,* was binding upon the Court of

Appeal. Appendix A, p. A-2, fn. 1. The People also notified

the Court of Appeal by letter that the People entered into the

stipulation with the "understanding that an affirmance . . . does

not preclude [the People] from seeking review [of the federal

question] in the United States Supreme Court, depending upon

the result in the California Supreme Court." Appendix,

pp. A-14 to A-15. The Court of Appeal accepted the stipula-

tion and affirmed, entering its judgment and opinion on

September 13, 1988. Appendix A, pp. A-1 to A-3.

The California Supreme Court denied a petition for

review of the opinion of the Court of Appeal on December

22, 1988. Appendix, p. A-4. On petitioner’s application, the

Court of Appeal ordered issuance of its remittitur stayed to

5. Auto Equity Sales, Inc. v. Superior Court, 57 Cal.2d 450, 455 (1962).

6. See Engert, 31 Cal.3d at 806-809; also 809 (conc. opn.) and 814

(dissent).

March 24, 1989. Appendix, p. A-5. The People have filed

this Petition for Writ of Certiorari seeking review of the

holding in Engert and the judgment of the Court of Appeal as

dictated by Engert. Unless the Court grants relief, the People

of the state will be unable to offer proof on the allegation

that the alleged murder was "especially heinous, atrocious and

cruel" and will therefore be unable to seek the sentences of

death or life without parole should Parwez be convicted of the

charged murder in the first degree. See § 190.2(a).

REASONS FOR ALLOWANCE

OF THE WRIT - RULE 21.1(j)

The highest court of the State of California, in Engert,

and, at least since Engert binds it, the Court of Appeal in this

case, have "decided a federal question in a way in conflict with

applicable decisions of this Court.". Rule 17.1(c). In Engert,

the California Supreme Court decided "that subdivision (a)(14)

in section 190.2 is unconstitutionally vague and violative of the

due process clause of the Fourteenth Amendment of the—

United States Constitution and article I, sections 7, subdivision

(a), and 15 of the Constitution of the State of California."

31 Cal.3d at p. 806.

This Court’s recent opinion in Maynard v. Cartwright,

__ US. __, 100 L.Ed.2d 372, 108 S.Ct. 1853 (1988), herein-

after Maynard, makes it clear that (1) the state Supreme Court

based its decision in Engert_upon an erroneous analytical

standard and (2) application of the proper standard leads to

the conclusion that the federal constitution permits an “espe-

cially heinous, atrocious or cruel" special or aggravating

circumstance, so long as "some narrowing principle"’ or

"limiting construction™ is used by the trier of fact in the

application of this special circumstance to the facts of the case.

7. Maynard, 100 L.Ed.2d at 381, 108 S.Ct. at 1859.

8. Ibid.

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The erroneous analytical standard used by the California

Supreme Court led the court to conclude that the very

wording of subdivision (a)(14) precluded a court from finding

what this Court in Maynard subsequently termed a "narrowing

principle."* Yet the words in the Oklahoma statute considered

by the Court in Maynard are identical to words which the

California Supreme Court in Engert held cannot meet "the

standards of precision and certainty required of statutes... ."

31 Cal.3d at 802. Comparison of Engert with Maynard shows

that the California Supreme Court misjudged federal law and

"fundamantal principles of due process," 31 Cal.3d at 804, when

it held that the very words used in subdivision (a)(14) automat-

ically violated the due process clause of the United States

Constitution because they could not provide sufficient certainty

for the imposition of the death penalty. 31 Cal.3d at 806.

Although Engert was based upon both federal and state

grounds, it is clear from the opinions,” that the "decision fairly

appears to rest primarily on federal law, or to be interwoven

with the federal law ... .". Michigan v. Long, 463 U.S. 1032,

1040, 77 L.Ed.2d 1201, 1214, 103 S.Ct. 3469, 3476 (1983).

9. Thus, in Engert, both the methodology, as well as the conclusion

derived therefrom, were faulty. The method was faulty because in judging the

statute, the California Court read the words of the statute in the abstract,

without regard to any actual application to the facts of any particular case or

cases. The Constitution does not require the statute to pass that kind of a

test. Had the course outlined in Maynard been pursued, the Court might

have achieved a narrowing principle or limiting construction in applying the

Statute and thus preserved the intent which we hope to be able to argue to

the state courts was manifest in enactment of the statute.

10. Compare the concurring opinion in Engert, wherein one Justice

stated he would "rely solely on the California Constitution," 31 Cal.3d at 809,

with the majority opinion, which grounds its decision as well on the United

States Constitution, calling the heinous murder special circumstance "unconsti-

tutionally vague and violative of the due process clause of the Fourteenth

Amendment," 31 Cal.3d at 806, and attempts to distinguish the context of this

Court’s otherwise binding opinion in Proffitt v. Florida, 428 U.S. 242, 49 L.Ed.

913, 96 S.Ct. 2960 (1976), on a basis which implicity recognizes the impor-

tance of the federal grounds. 31 Cal.3d at 804-806. See the discussion, post,

at pages 10-11.

Thus, the most reasonable explanation for the decision of the

California Supreme Court in Engert is that it "decided the case

the way it did because it believed that federal law required it

to do so." Ibid. The state court has thus erroneously decided

a federal question while erroneously interpreting the state

constitution. In order to properly analyze the federal question

presented in this case, the background of the issue in the

California-courts must be recounted. Part of that background

is noted in Allen v. Superior Court 113 Cal.App.3d 42 (1980),

disapproved in Engert, 31 Cal.3d at 806:

We note that the First District in People v. Superior

Court (Engert) (1980) 105 Cal.App.3d 365 [164

Cal.Rptr. 210] [later ordered deleted by the Califor-

nia Supreme Court] agreed with the vagueness

contention advanced by petitioner. Our state

Supreme Court then denied a petition for hearing in

Engert. The remittitur in the opinion was stayed

because the Attorney General filed a petition for

certiorari to the United States Supreme Court. The

court granted certiorari in Engert, vacated the

Opinion, and remanded the matter to the First

District so it could specify whether the ruling was

based on federal and/or state constitutional grounds.

[California v. Superior Court, 449 U.S. 945, 101 S.Ct.

344, 66 L.Ed.2d 209 (1980).]

113 Cal.App.3d at 49.

Thereafter, the Court of Appeal considering Engert stated

its decision was on both federal and state grounds. Pub. in

adv. sheets at 120 Cal.App.3d 721," hg. granted Cal. Supreme

11. The opinion reads in full:

THE COURT:*—On December 3, 1980, the Supreme Court of

the United States granted certiorari in these causes, vacated the

(continued...)

Ct. (Sept. 23, 1981). When the California Supreme Court

later decided Engert, it also relied upon both federal and state

constitutional provisions, although one concurring Justice

would have relied solely upon the California Constitution. 31

Cal.3d at 809. In light of California v. Krivda, 409 U.S. 33, 34

L.Ed2d 45, 93 S.Ct. 32 (1972), the effect at the time was, as

noted by a dissenting Justice:

In any event, the majority, in familiar fashion, —

has precluded any high court review of the vagueness

question as applied to section 190.2, subdivision (a),

by its reliance upon both federal and state constitu-

tional provisions to justify its holding. In my view,

the majority’s reliance upon the state Constitution,

thereby shutting the door to the People who might

otherwise have sought further review, frustrates the

spirit, if not the letter, of article I, section 27 of the

California Constitution, which validated the death

penalty laws in this state. As we carefully observed

in Frierson, the people adopted that constitutional

provision in November 1972 for the purpose of

"reinstating the death penalty to the extent permitted

by federal constitutional law." (P. 186, italics added.)

I have no reasonable doubt that the statutory provi-

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11. (...continued)

judgment of this court, and remanded with directions "to consider

whether [the] judgment is based on federal or state constitutional

grounds, or both.” The majority of this court have reexamined

their opinion (reported at 105 Cal.App.3d 365) and certify that

they relied on both the due process clause of the Fourteenth

Amendment of the United States Constitution and article I,

sections 7(a) and 15, of the Constitution of the State of California.

Poché, J., having dissented from the majority opinion, does not

join in this certification.

Se Bey th eee

“Before Rattigan, Acting PJ., Christian, J., and Poché, J.

12. People v. Frierson, 25 Cal.3d 142 (1979).

sion at issue here is constitutional under federal law.

(Proffitt v. Florida, supra, 428 U.S. at pp. 255-256.

31 Cal.3d at 814.

However, since the penning of those dissenting lines,

federal law has changed, and the Engert opinion would now be

subject to review by this Court in light of Michigan v. Long.

There this Court held that it would review a decision of a

state court when that decision "fairly appears to rest primarily

on federal law,or to be interwoven with the federal law, and

when the adequacy and independence of any possible state law

ground is not clear from the face of the opinion... ." 463

U.S. at 1040. Engert decided a federal question, and is, there-

fore, now subject to review by this Court through the vehicle

of the case at bar, albeit that at the time Engert was declared

by the California Supreme Court to rest on both state and

federal grounds, it was not then subject to such review.

Engert also decided the question incorrectly. In Engert,

the California Supreme Court held that Proffitt v. Florida,

supra, 428 U.S 242, was not applicable "because of the differ-

ing contexts in which the provision is found and the different

issues before the courts ...." 31 Cal.3d at 806. The essence

of the distinction found by the California Supreme Court was

that the "heinous" murder provision in the Florida statute was

an aggravating circumstance which was used to determine if a

defendant should receive the death penalty, whereas Califor-

nia’s "heinous" murder provision was used as part of the

definition of the crime to determine if the defendant was

death eligible. Thus, the California Supreme Court deemed

the two statutes to be procedurally different for purposes of

federal constitutional law. This distinction was erroneous.

This Court has made it clear that, for purposes of the

federal constitution, a statute such as California’s, which

narrows the class of capital eligible defendants through the use

of jury findings at the guilt phase of a trial, is the equivalent

of a statute which "more broadly define[s] capital offenses and

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provide[s] for narrowing by jury findings of aggravating circum-

stances at the penalty phase." Lowenfield v. Phelps, 484 U.S.

____, 98 L.Ed.2d 568, 582, 108 S.Ct. 546, 555 (1988). Thus,

one of the underpinnings of Engert has been removed.

But that is not all that has been removed. In Engert, the

California Supreme Court concluded that the appropriate

constitutional issue was one of due process and not an Eighth

Amendment issue. See People v. Bean, 46 Cal.3d 919, 957

(1988). Yet, in light of the fact that narrowing through capital

eligibility is the equivalent of narrowing through penalty

aggravating circumstances, this Court has also made it clear

that the proper issue to consider is an Eighth Amendment

issue. In Maynard, the Court stated:

Claims of vagueness directed at aggravating

circumstances defined in capital punishment statutes

are analyzed under the Eighth Amendment and

characteristically assert that the challenged provision

fails adequately to inform juries what they must find

to impose the death penalty and as a result leaves

them and appellate courts with the kind of open-

ended discretion which was held invalid in Furman v.

Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346

(1972).

108 S.Ct. at 1858, 100 L.Ed.2d at 380. The Court noted that

"the difficulty with the State’s argument is that it presents a

Due Process Clause approach to vagueness and fails to

recognize the rationale of our cases construing and applying

the Eighth Amendment." 108 S.Ct. at 1858, 100 L.Ed.2d at

380.

Yet even if a Due Process Clause approach were the

proper approach to the determination of the constitutionality

of subdivision (a)(14), Maynard also makes it clear that the

result in Engert was wrong:

Objections to vagueness under the Due Process

Clause rest on the lack of notice, and hence may be

Overcome in any specific case where reasonable

persons would know that their conduct is at risk.

Vagueness challenges to statutes not threatening First

Amendment interests are examined in light of the

facts of the case at hand; the statute is judged on an

as-applied basis.

108 S.Ct. at 1858, 100 L.Ed.2d at 380. In Engert, the Califor-

nia Supreme Court did not consider the vagueness issue on an

as-applied basis, but instead, concluded that subdivision (a)(14)

was unconstitutional on its face without any consideration of

its application to a particular situation. And so, whether a

Due Process or an Eighth Amendment approach is used in

determining the constitutionality of a statute which contains

the phrase "especially heinous, cruel or atrocious," Maynard

makes it clear that the crux of the issue is whether "some

narrowing principle" or “limiting construction" can be applied

to a statute such as subdivision (a)(14) to provide adequate

notice to a defendant and adequate guidance to a jury. 108

S.Ct. at 1859, 100 L.Ed.2d at 381. It is obvious that such

limitations can be placed upon the language of the California

Statute just as easily as they can be placed upon other states’

similar statutes.”

13. Under California law, a statute "must be upheld unless its uncon-

sutuuionality ‘clearly, positively and unmistakably appears.” In re Dennis M.

70 Cal.2d 444, 453 (1969). Seventeen states have adopted death penalty

Statutes that include words identical to one or more of the words in the

“heinous, cruel or atrocious” phrase of the California statute. (See ALABAMA

Crim. Cope, 13A-5-49; Arizona Crim. Cope, 13-703(f)(g); ARKANSAS STATS.,

5-4-604; Cotorapo Rev. Srats., 16-11-103(6)(g); Connecticut Pen. Cope,

53a-46a(n); FLoripa Srats., (4)921.141(5)(h); IpaHo Srats., 19-2515(g)(5);

ILtinois Crim. Cope, ch. 38, 9-1(b)(7); Louisiana Cope CRIM. Proc., art.

905.4(g); Mississippi! Cope ANN., 99-19-101(5)(h); NEBRASKA REV. STATS.,

29-2523(1)(d); New Hampsuire Crim. Cope, 630:5(I1)(a)(7); NorTH CAROLINA

Gen. Stats., 15A-2000(€)(9); OxLaHoma Stats. Ann., Tit. 21-701.12(4);

(continued...)

13. (...continued)

TENNESSEE Cope ANN., 39-2-203(i)(5); UtaH Cope Ann., 76-5-202(I)(g);

Wyomine Srats., 6-2-102(h)(vii).) In these 17 states, the constitutionality of

the statutes has been expressly litigated and upheld in 11 states. See Ex Parte

Kyzer, 399 So.2d 330, 333-334 (Ala. 1981); State v. Gretzler, 659 P.2d 1, 9-12

(Ariz. 1983); but see Adamson v. Ricketts, __ F.2d __ (9th Cir. 1988) (No.

84-2069) [Arizona statute unconstitutional as applied]; State v. Dixon, 283

So.2d 1, 9 (Fla. 1973); State v. English, 367 So.2d 815, 823 (La. 1979); State

v. Osborn, 631 P.2d 187, 199-200 (Idaho 1981); Washington v. State, 361

So.2d 61, 65-66 (Miss. 1978); State v. Palmer, 399 N.W.2d 706, 725-732 (Neb.

1986); State v. Goodman, 257 S.E.2d 569, 585 (N.C. 1979); Stouffer v. State,

742 P.2d 562, 563-564 (Okl. Cr. 1987); but see Maynard v. Cartwright, 486

U.S. ___, 100 L.Ed.2d 372, 108 S.Ct. 1853 [Oklahoma statute unconstitu-

tional as applied]; State v. Williams, 690 S.W.2d 517 (Tenn. 1985); Hopkinson

v. State, 632 P.2d 79, 152-154 (Wyo. 1981).

In some of these 17 states, their statutes have been upheld, expressly or

implicitly, in the following federal cases. See Jeffers v. Ricketts, 832 F.2d 476,

482-483 (9th Cir. 1987) [Arizona; but see Adamson v. Ricketts, ___ F.2d _

(9th Cir. 1988) (No. 84-2069)]; Hargrove v. Wainwright, 804 F.2d 1182,

1192-1196 (11th Cir. 1986) [Florida; vacated on other grounds on rehearing

809 F.2d 1486]; Rault v. Butler, 826 F.2d 299, 306-308 (Sth Cir. 1987)

[Louisiana]; Gray v. Lucus, 677 F.2d 1086, 1105 (Sth Cir. 1982) [Mississippi];

Holtan v. Black, 838 F.2d 984, 985-986 (8th Cir. 1988) [Nebraska]; Turner v.

Bass, 753 F.2d 342, 350-353 (4th Cir. 1985) [Virginia; reversed on other

grounds, Turner v. Murray, 476 U.S. 28, 90 L.Ed.2d 27, 106 S.Ct. 1683

(1985)}.

No state other than California, and no federal case, has ever held a

statute which contains one of the concepts in California’s "heinous, cruel or

atrocious" phrase to be unconstitutional on its face.

As was stated by a dissenting justice in Engert, "It is significant that if

an insurmountable ‘vagueness problem’ truly exists, we are the only court to

discern it. My research discloses that all other courts which have considered

the issue, including the United States Supreme Court, have uniformly upheld

identical or substantially identical language defining special or aggravating

circumstances >» state death penalty legislation as against similar vagueness

attacks." 31 Cal.3d at 810. Our research indicates that this statement is as

true today as it was at the time of the dissent. At that time, the courts of 10

sister states had upheld such a statute. Since the dissent was written, one

more state (Alabama) has upheld a substantially identical statute and no state,

other than California, has siruck down such a statute. :

The list of states upholding such a statute is even longer when cases

considering different language with the same objective are taken into account.

See State v. Ramseur, 106 NJ. 123, 524 A.2d 188, 224-232 (1987) ["outra-

geously wantonly vile, horrible or inhuman in that it involved torture, depravity

of mind, or an aggravated battery to the victim"); Jones v. Commonwealth, 228

Va. 427, 323 S.E.2d 554, 564-566 (1984) [same]; Hance v. State, 245 Ga.

(continued...)

CONCLUSION

So long as constitutional principles are not violated, a

state may adopt whatever criteria it deems appropriate for

death penalty eligibility. The electorate in California deemed

the selection of such criteria to be so important that in 1978

they enacted legislation by an initiative which set forth the

criteria for death penalty eligibility and included therein as one

criterion murder "especially heinous, atrocious and cruel." (§

190.2(a)(14).) The California courts struck down that par-

ticular criterion on the ground that it violated both the federal

and state constitutions. In so doing, the California Supreme

Court considered neither a "narrowing principle" nor a "limiting

construction" of subdivision (a)(14). Instead, in Engert, the

Court simply said that the language of the statute could never

satisfy constitutional concern for due process. This Court

thereafter rejected that kind of an analysis in reviewing a

statute which contained the language at issue in this case.

Although the state court’s error in analysis and result was

brought to its attention in this case, the California Supreme

Court has refused to reexamine Engert. Yet it is now clear

that a court can uphold a statute which provides the possibility

of a death penalty for an “especially heinous, atrocious and

cruel" murder, even though, as in this case, the murder did not

meet any other death eligible criteria.

“This Court demonstrated sufficient interest in the question

presented by this case by granting certiorari in Engert when it

was before the California Court of Appeal. California v.

Superior Court, 449 U.S. 945. On remand from this Court, the

13. (...continued)

856, 268 S.E.2d 339, 344-346 (1980), cert. den. 449 U.S. 1067, reh. den. 449

U.S. 1135 [same]; State v. Griffen ___ Mo. __, S.W.2d (No.

69733 July 26, 1988) [torture or depravity of mind, ‘the result of which was

outrageously or wantonly vile, horrible or inhuman]; Cavanaugh v. State (Nev.

1986) 729 P.2d 481, 486 ["torture, depravity of mind or the mutilation of the

victim" }.

Court of Appeal certified that its majority had relied upon

both state and federal grounds. When the state Supreme

Court then took over Engert, it also decided on state and

federal grounds. Thus, this Court was unable to consider the

issue present in this case at that time despite its expressed

interest. The issue has returned, and this Court now has the

~ ability to review it and, hopefully, from the standpoint of the

People, validate the will of the California electorate.

The People of the State of California therefore respectful-

ly pray that the Court grant this Petition for Writ of

Certiorari.

Respectfully submitted,

IRA REINER

District Attorney

County of Los Angeles, California

7 by

HARRY B. SONDHEIM

Head Deputy

Appellate Division

BRENT RIGGS

Deputy District Attorney

eee ee EEO OEE ee

APPENDIX

NOT TO BE PUBLISHED

IN THE

COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, ) No. B033193

) (Super.Ct.No.

Plaintiff and ) A887428)

Appellant, )

) Court of

Vv ) Appeal -

) Second District

~ KHALID PARWEZ, ) FILED .

) SEP 13 1988

Defendant and ) Robert N.

Respondent. ) Wilson Clerk

)

APPEAL from an order of the Superior Court of Los

Angeles County. Robert Martinez, Judge. Affirmed.

Ira Reiner, District Attorney, Harry B. Sondheim,

Head Deputy District Attorney, and Brent Riggs, Deputy

District Attorney for Plaintiff and Appellant.

Leslie H. Abramson, for Defendant and Respondent.

The People appeal from an order denying a motion

pursuant to Penal Code section 871.5.

The defendant is charged with murder, and the People

had alleged as a special circumstance that the murder was

especially heinous, atrocious and cruel. (Pen. Code, § 190.2,

subd. (a)(14).) The magistrate sustained a demurrer to that

special circumstance allegation, and the People sought review

pursuant to Penal Code section 871.5. The Superior Court

denied the motion to reinstate the special circumstances

allegation concluding, as the magistrate had done, that the

allegation was barred by reason of People v. Superior Court

(Engert) (1982) 31 Cal.3d 797, 806.

The sole ground urged for reversal is that the

Supreme Court’s decision in Engert is erroneous. The People,

however, concede in their opening brief that this court is

bound by the decisions of the California Supreme Court.

A stipulation’ signed by the parties’ attorneys has

been filed in this court. In the stipulation the parties consent

to the affirmance of the Superior Court’s order pursuant to

Engert. The stipulation has been also construed as a waiver

of the need for a respondent’s brief and a waiver of oral

argument. The order will be affirmed. (See People v.

Williams (1946) 73 Cal.App.2d 852.)

1. "Under compulsion of Auto Equity Sales, Inc. v.

Superior Court (1962) 57 Cal.2d 450, it is hereby stipulated

that on or after August 27, 1988, the judgment in this case

may be affirmed by the Court of Appeal, Division 5, pursuant

to People v. Superior Court (Engert) 1982 31 Cal.3d 366 [sic],

without prejudicing the efforts of appellant to seek recon-

sideration in this pending case by the California Supreme

Court of the holding in Engert and without prejudicing the

legal position of appellant during the course of such efforts

since this stipulation is intended to only be binding in the

Court of Appeal."

A-3

The order under review is affirmed.

NOT TO BE PUBLISHED.

LUCAS, P. J.

__ We concur:

BOREN, J.

KENNARD, J.

A-4

ORDER DENYING REVIEW

AFTER JUDGMENT BY THE COURT OF APPEAL

2nd District, Division 5, No. B033193

S007594

IN THE

SUPREME COURT OF THE STATE OF CALIFORNIA

IN BANK

PEOPLE Supreme Court

FILED

v. DEC 22 1988

Clerk

KHALID PARWEZ

Appellant's petition for review

DENIED.

LUCAS

Chief Justice

IN THE

COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE OF THE STATE OF )2d Crim

CALIFORNIA ) B033193

| Plaintiff and Appellant, ) Sup. Ct. No.

) A887428

| )

KHALID PARWEZ, ) ORDER

Defendant and Respondent. )

)

| Court of Appeal - Second Dist.

FILED

JAN 9 1989

ROBERT N. WILSON Clerk

THE COURT:

Application of appellant for stay of issuance of remittitur is

granted. Remittitur shall now issue on March 24, 1989.

Lucas

Presiding Justice

A-6

CALIFORNIA PENAL CODE SECTION 190.2

(a) The penalty for a defendant found guilty of murder

in the first degree shall be death or confinement in state

prison for a term of life without the possibility of parole in any

case in which one or more of the following special circumstan-

ces has been charged and specially found under Section 190.4,

to be true:

(1) The murder was intentional and carried out for

financial gain.

(2) The defendant was previously convicted of murder in

the first degree or second degree. For the purpose of this

paragraph an offense committed in another jurisdiction which

if committed in California would be punishable as first or

second degree murder shall be deemed murder in the first or

second degree.

(3) The defendant has in this proceeding been convicted

of more than one offense of murder in the first or second

degree.

(4) The murder was committed by means of a destructive

device, bomb, or explosive planted, hidden or concealed in any

place, area, dwelling, building or structure, and the defendant

knew or reasonably should have known that his act or acts

would create a great risk of death to a human being or human

beings.

(5) The murder was committed for the purpose of

avoiding or preventing a lawful arrest or to perfect, or attempt

to perfect an escape from lawful custody.

aS eee panies

(6) The murder was committed by means of a destructive

device, bomb, or explosive that the defendant mailed or

delivered, attempted to mail or deliver, or cause to be mailed

or delivered and the defendant knew or reasonably should

have known that his act or acts would create a great risk of

death to a human being or human beings.

(7) The victim was a peace officer as defined in Section

830.1, 830.2, 830.3, 830.31, 830.35, 830.36, 830.4, 830.5, 830.5a,

830.6, 830.10, 830.11 or 830.12, who, while engaged in the

course of the performance of his duties was intentionally killed,

and such defendant knew or reasonably should have known

that such victim was a peace officer engaged in the perfor-

mance of his duties; or the victim was a peace officer as

defined in the above enumerated sections of the Penal Code,

or a former peace officer under any of such sections, and was

intentionally killed in retaliation for the performance of his

official duties.

(8) The victim was a federal law enforcement officer or

agent, who, while engaged in the course of the performance of

his duties was intentionally killed, and such defendant knew or

reasonably should have known that such victim was a federal

law enforcement officer or agent, engaged in the performance

of his duties; or the victim was a federal law enforcement

officer or agent, and was intentionally killed in retaliation for

the performance of his official duties.

(9) The victim was a fireman as defined in Section 245.1,

who while engaged in the course of the performance of his

duties was intentionally killed, and such defendant knew or

reasonably should have known that such victim was a fireman

engaged in the performance of his duties.

A-8

(10) The victim was a witness to a crime who was

intentionally killed for the purpose of preventing his testimony

in any criminal proceeding, and the killing was not committed

during the commission, or attempted commission of the crime

to which he was a witness; or the victim was a witness to a

crime and was intentionally killed in retaliation for his tes-

timony in any criminal proceeding.

(11) The victim was a prosecutor or assistant prosecutor

or a former prosecutor or assistant prosecutor of any local or

state prosecutor’s office in this state or any other state, or a

federal prosecutor’s office and the murder was carried out in

retaliation for or to prevent the performance of the victim’s

official duties.

(12) The victim was a judge or former judge of any court

of record in the local, state or federal system in the State of

California or in any other state of the United States and the

murder was carried out in retaliation for or to prevent the

performance of the victim’s official duties.

(13) The victim was an elected or appointed official or

former official of the Federal Government, a local or State

government of any other state in the United States and the

killing was intentionally carried out in retaliation for or to

prevent the performance of the victim’s official duties.

(14) The murder was especially heinous, atrocious, or

cruel, manifesting exceptional depravity, as utilized in this

section, the phrase especially heinous, atrocious or cruel

manifesting exceptional depravity means a conscienceless, or

pitiless crime which is unnecessarily torturous to the victim.

(15) The defendant intentionally killed the victim while

lying in wait.

(16) The victim was intentionally killed because of his

race, color, religion, nationality or country of origin.

(17) The murder was committed while the defendant was

engaged in or was an accomplice in the commission of,

attempted commission of, or the immediate flight after

committing or attempting to commit the following felonies:

(i) Robbery in violation of Section 211.

(ii) Kidnapping in violation of Sections 207 and 209.

(iii) Rape in violation of Section 261.

(iv) Sodomy in violation of Section 286.

(v) - The performance of a lewd or lascivious act upon

person of a child under the age of 14 in violation of Section

288.

(vi) Oral copulation in violation of Section 288a.

(vii) Burglary in the first or second degree in violation of

Section 460.

(vii) Arson in violation of Section 447.

(ix) Train wrecking in violation of Section 219.

(18) The murder was intentional and involved the

infliction of torture. For the purpose of this section torture

requires proof of the infliction of extreme physical pain no

matter how long its duration.

A-10

(19) The defendant icaieaecasi dle killed the victim by the

administration of poison.

(b) Every person whether or not the actual killer found

guilty of intentionally aiding, abetting, counseling, commanding,

inducing, soliciting, requesting, or assisting any actor in the

commission of murder in the first degree shall suffer death or

confinement in state prison for a term of life without the

possibility of parole, in any case in which one or more of the

special circumstances enumerated in paragraphs (1), (3), (4),

(5), (6), (7), (8)s (9), (10), (11), (12), (13), (14), (15), (16),

(17), (18), or (19) of subdivision (a) of this section has been

charged and specially found under Section 190.4 to be true.

The penalty shall be determined as provided in Sections

190.1, 190.2, 190.3, 190.4, and 190.5. (Added by § 6 of

Initiative Measure approved Nov. 7, 1978.)

A-11

CALIFORNIA PENAL CODE SECTION 871.5

(a) When an action is dismissed by a magistrate pursuant

to Section 859b, 861, 871, 10008, 1381, 1381.5, 1385, 1387, or

1389, or a portion thereof is dismissed pursuant to those same

sections which may not be charged by information under the

provisions of Section 739, the prosecutor may make a motion

in the superior court within 15 days to compel the magistrate

to reinstate the complaint or a portion thereof and to reinstate

the custodial status of the defendant under the same terms

and conditions as when the defendant last appeared before the

magistrate.

(b) Notice of the motion shall be made to the defendant

and the magistrate. The only ground for the motion shall be

that, as a matter of law, the magistrate erroneously dismissed

the action or a portion thereof.

motion on the basis of the record of the proceedings before

the magistrate. If the motion is litigated to decision by the

prosecutor, the prosecution is prohibited from refiling the

dismissed action, or portion thereof.

(d) Within 10 days after the magistrate has dismissed the

action or a portion thereof, the prosecuting attorney may file

a written request for a transcript of the proceedings with the

clerk of the magistrate. The reporter shall immediately

transcribe his or her shorthand notes pursuant to Section 869

and file with the clerk of the superior court an original plus

one copy, and as many copies as there are defendants (other

than a fictitious defendant). The reporter shall be entitled to

compensation in accordance with the provisions of Section 869.

The clerk of the superior court shall deliver a copy of the

transcript to the prosecuting attorney immediately upon its

A-12

receipt and shall deliver a copy of the transcript to each

defendant (other than a fictitious defendant) upon his or her

demand without cost.

(ec) When a court has ordered the resumption of

proceeding before the magistrate, the magistrate shall resume

the proceedings and when so ordered, issue an order of

commitment for the reinstated offense or offenses within 10

days after the remittitur is filed in the superior court. Upon

receipt of the remittitur, the superior court shall forward a

copy to the magistrate.

(f) Pursuant to paragraph (9) of subdivision (a) of

Section 1238 the people may take an appeal from the denial

of the motion by the superior court to reinstate the complaint

or a portion thereof. If the motion-to reinstate the complaint

is granted, the defendant may seek review thereof only

pursuant to Sections 995 and 999a. Such review may only be

sought in the event the defendant is held to answer pursuant

to Section 872. .

(g) Nothing contained herein shall preclude a magistrate,

upon the resumption of proceedings, from considering a

motion made pursuant to Section 1318.

If the superior court grants the motion for reinstatement

and orders the magistrate to issue an order of commitment,

the defendant, in lieu of resumed proceedings before the

magistrate, may elect to waive his or her right to be committed

by a magistrate, and consent to the filing of an amended or

initial information containing the reinstated charge or charges.

After arraignment thereon, he or she may adopt as a motion

pursuant to Section 995, the record and proceedings of the

motion taken pursuant to this section and the order issued

pursuant thereto, and may seek review of the order in the

| A-13

manner prescribed in Section 999a. (Added by Stats.1 980, c.

938, § 4. Amended by Stats.1981, c. 714, § 328; Stats.1981, c.

854, § 3; Stats.1982, c. 466, § 80; Stats.1982, c. 671, $ 1;

Stats.1982, c. 1505, § 2.)

A-14

OFFICE OF THE DISTRICT ATTORNEY

COUNTY OF LOS ANGELES

BUREAU OF SPECIAL OPERATIONS

[SEAL] APPELLATE DIVISION

849 SOUTH BROADWAY, 11TH FLOOR

LOS ANGELES, CA 90014-3570

(213) 974-5911

IRA Reser, Districr ATTORNEY R. Dan Murpny, DirecTor

Gitpert Garcetrn, CHieF Deputy District ATTORNEY

Curr Livesay, AssISTANT District ATTORNEY

August 24, 1988

Court of Appeal

Second Appellate District

3580 Wilshire Boulevard, Room 301

Los Angeles, California 90010

Honorable Justices:

RE: People v. Khalid Parwez

No. B-033193; A0887428

In connection with appellant's agreement

that this case may be affirmed pursuant to

Auto Equity Sales, Inc. v. Superior Court

(1962) 57 Cal.2d 450, it should be noted

that, since appellant has no basis for

knowing at this time what the California

Supreme Court will do in this case and

Since, in appellant's view, this case

presents a federal question because People

v. Engert (1982) 31 Cal.3d 797 was decided

on both state and federal grounds, it is

appellant's understanding that an affir-

mance herein by this Court does not pre-

clude appellant from seeking review in the

A-15

United States Supreme Court, depending

upon the result in the California Supreme

Court. Resolution of appellant's right to

federal review is, of course, premature at

this time, and, in any event, would be a

question to be resolved by the United

States Supreme Court.

Respectfully submitted

IRA REINER

District Attorney of

Los Angeles County

HARRY B. SONDHEIM

Head, Appellate Division

rem

C3 (See attached Declaration of Service

by Mail.)

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.