Opposition Brief — California v. Baert

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No. 88-1547 a

IN THE

SUPREME COURT OF THE UNITED STATES

‘October Term, 1988

THE PEOPLE OF THE STATE OF CALIFORNIA,

Petitioner,

V.

HAROLD JAMES BAERT,

Respondent.

ON WRIT OF CERTIORARI

TO THE COURT OF APPEAL OF THE

STATE OF CALIFORNIA

BRIEF OF RESPONDENT IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

WILBUR F. LITTLEFIELD, PUBLIC DEFENDER OF LOS

ANGELES COUNTY, CALIFORNIA

Laurence M. Sarnoff,

Charles Gessler,

Alan Abajian,

Henry J. Hall,

Deputy Public Defenders

320 West Temple Street, Room 590

Los Angeles, California 90012

Telephone: (213) 974-3074

Attorneys for Respondent

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QUESTION PRESENTED

Stripped of its rhetoric, the question presented by

this CaSe 1S:

May a judicial change in the law which eliminates

an element from the substantive definition of a capital offense

be applied retroactively to a crime committed prior to the change

in the law, when such retroactive application will have the effect

of capitally punishing a crime which was not capital when

committed?

TOPICAL INDEX

TABLE OF AUTHORITIES CITED . iv

BRIEF OF RESPONDENT IN

OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

INTRODUCTION l

OPINION BELOW 3

JURISDICTION 3

CONSTITUTIONAL PROVISIONS 7 4

INVOLVED

STATEMENT OF THE CASE 4

A. Statement of facts 4

B. Statement of the case 4

ARGUMENT 6

I. THE ISSUE IN THE CASE AT &

BENCH IS NOT OF SUFFICIENT

IMPORTANCE TO WARRANT THIS

COURT'S ATTENTION

II. THE JUDICIAL ELIMINATION OF 11

THE INTENT TO KILL ELEMENT

OF CALIFORNIA’S FELONY-MURDER

BASED SPECIAL CIRCUMSTANCES

MAY NOT BE RETROACTIVELY

APPLIED TO RESPONDENT'S CASE

-ii-

A. Retroactive application of 1]

a change in the law which

eliminates an element of a

capital offense is prohibited

by the ex post facto clause ot

the United States Constitution.

B. Petitioner's responses. 14

C. The malum in se versus malum 15

prohibitum distinction is

without constitutional

significance.

D. The “reasonableness” of the 18

intent to kill element is not

constitutionally significant.

E. The Carlos decision, which 21

interpreted the California

death penalty law as requiring

an intent to kill as a

prerequisite to capital

punishment for felony-murder,

was not "unreasonable."

F. Respondent need not prove 28

"actual reliance” on the

law as a condition precedent

to asserting that its

retroactive modification would

deny him due process.

CONCLUSION 29

TABLE OF AUTHORITIES CITED

Cases

Bouie v. City of Columbia, passim

378 U.S. 347, 84 S.Ct. 1697,

12 L.Ed.2d 894 (1964)

Cabana v. Bullock, passim

474 U.S. 376, 106 S.Ct. 689,

88 L.Ed.2d 704 (1986)

Calder v. Bull, 12

3 Dall. 386, 390,

1 L.Ed. 648 (1798)

California v. Garcia, 24

469 U.S. 1229, 84 L.Ed.2d 366,

105 S.Ct. 1229 (1985)

Carlos v. Superior Court, passim

35 Cal.3d 131, 197 Cal.Rptr. 79,

672 P.2d 862 (1983).

Cole v. Young, 20

817 F.2d 412 (7th Cir. 1987)

Dobbert v. Florida, 12

432 U.S. 282, 53 L.Ed.2d 344,

97 S.Ct. 2290 (1977)

Douglas v. Buder, 14

412 U.S. 430, 93 S.Ct. 2199,

37 L.Ed.2d 52 (1973)

Enmund v. Flonda,

iS8 U.S. 782. 102 S.Ct. 3368

73 L.Ed.2d 1140 (1982)

19

4

Hirabayashi v. United State:

390 US. 81. 63 S.Ct. 1375

87 L.Ed. 1774 (1943

Hirabayashi v. United Sta 19

828 F.2d 591 (9th Cir. 1987

Hohn v. United Stat 19

782 F.2d 227 (D.C. Cu RG

In re Baert, 3

205 Cal.App.3d 514

252 Cal.Rptr. 418 (1988

re Medle 17

34 U S. 160, 10S {

3 L.Ed. 890

In re Winship 7

ays

397 US. 358. 90 S.(

;

25 L.Ed.2d 368 (1970)

19

Korematsu v. Uni

323: U.S. 214, 65 S.Ct. 194

89 L.Ed. 194 (1944)

19

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14.16

Miller v. Florida,

482 U.S. 423, 107 S.Ct. 2446

96 L.Ed.2d 351 (1987

Moore v. Wyrick

766 F.2d 1253 (8th Cir. 1985

cert. denied, 477 U.S. 1032.

106 S.Ct. 1242. 89 L.Ed.2?d 350

Palmer v. City of Euclid, Ohio

402 U.S. 544, 91 S.Ct. 1563

29 L.Ed.2d 98 (1971

People v. Anderson,

43 Cal.3d 1104, 240 Cal.Rptr. 585

742 P.2d 1306 (1987

People v. Arreola

186 Cal. App.3d 1570

231 Cal.Rptr. 472 (1986

People v. Burgener,

41 Cal.3d 505, 224 Cal.Rptr

714 P.2d 1251 (1986)

People v. Garcia,

36 Cal.3d 539, 205 Cal.Rptr. 265

684 P.2d 826 (1984)

27 Cal.3d 1, 164 Cal. Rpts

609 P.2d 468 (1980)

People v. Hamilton

41 Cal.3d 408. 221 Cal.Rptr. 902

710 P.2d 981 (1985)

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IN THI

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ETITION FOR WRIT OF CERTIORARI

THI URT OF APPEAL OF THI

STATE OF CALIFORNIA

INTRODUCTION

(Carlos v. Superior Court, 35 Cal.3d 131, 197 Cal.Rptr. 79, 672

P.2d 862 (1983).) In November 1987, the California Supreme

Court overruled the Carlos decision and ruled that intent to kill

is no longer an element of felony-murder based special

circumstances. (People v. Anderson, 43 Cal.3d 1104, 240

Cal.Rptr. 585, 742 P.2d 1306 (1987).)

The case at bar arose in August 1987, and involves alleged

felony-murder based special circumstances. The trial court ruled

that the Anderson decision would be applied retroactively and

that the intent to kill element, which is critical under the bizarre

facts of this case, would be retroactively eliminated. The

California Court of Appeal ruled unanimously that the intent to

kill element could not be retroactively eliminated. The California

Supreme Court agreed; not a single justice voted to grant review.

This Court has recently denied certiorari in an almost identical

case. (Moore v. Wyrick, 766 F.2d 1253 (8th Cir. 1985), cert.

denied, without dissent, 477 U.S. 1032, 106 S.Ct. 1242, 89

L.Ed.2d 350.) This Court should do the same in the case at bar.

OPINION BELOW

The opinion of the Court of Appeal of the State of

California, Second Appellate District, Division Three, is included

in the Appendix to the Petition for Writ of Certiorari (A-1 to A-

11), as is the order from the California Supreme Court denying

the Petition for Review (A-12). The Court of Appeal’s decision

now appears as In re Baert, 205 Cal.App.3d 514, 252 Cal.Rptr.

418 (1988).

JURISDICTION

The jurisdictional prerequisites are adequately set forth at

pages 4 and 5 of the Petition for Wnt of Certiorari.

CONSTITUTIONAL PROVISIONS INVOLVED

The Constitutional and Statutory provisions involved in this

case are adequately set forth on pages 5 and 6 of the Petition

for Writ of Certiorari.

STATEMENT OF THE CASE

A. Statement of facts:

From the evidence presented at the preliminary hearing in

this case, it appears that respondent acted on a fantasy of having

sexual relations with an unconscious nurse by choking the victim

- a uniformed medical assistant - into unconsciousness and raping

her. During the sex acts, the victim began to awaken from the

initial choking, and respondent choked her again, ultimately

killing her. Most of the case against respondent is based on his

confession in which he denied intending to kill the victim,

asserting that his intent was to merely render her unconscious so

that he could fulfill his fantasy.

B. Statement of the case:

Respondent is the defendant in the case of People of the

State of California v. Harold James Baert, Los Angeles County

Superior Court Number A886494, and is charged with violating

California Penal Code sections 187 (murder), 261(2) (forcible

rape), and 211 (robbery). Additionally, there are two special

circumstances charged pursuant to California Penal Code section

190.2, subdivisions (a)(15) and (17), alleging that respondent

murdered the victim while engaged in the commission of the

crimes of rape and attempted rape, and that he intentionally

killed the victim while lying in wait. The offense is alleged to

have occurred on August 21, 1987.

Respondent was arraigned on November 3, 1987. On May

27, 1988, after the commencement of jury selection but before

the actual trial, the trial court ruled that it was not going to

instruct the jury that intent to kill was an element of the felony-

murder based special circumstances even though that was the law

at the time the alleged offenses were committed holding that

Anderson’s overruling of Carlos would be applied retroactively

to this case.

On August 1, 1988, respondent petitioned the ilifornia

Court of Appeal for a writ of habeas corpus challenging the

legality of his trial because of the trial court's retroactive

application of a change in the law. This petition was granted on

October 26, 1988, and the California Supreme Court denied

review on January 19, 1989.

ARGUMENT

The Petition for Writ of Certiorari in this case cites no

authority for the proposition it advances: that a state is not

bound by its own laws defining the elements of a capital crime.

There is a reason for this absence of authority - there is none.

Distilled to its essentials, petitioner's argument urges this

Court to demolish several of the cornerstones of our system of

laws: that persons are bound by the law whether they consider

the law to be reasonable or not; that persons are conclusively

presumed to know the law; and that the law is binding on all

even though it may be changed in the future.

To accept petitioner's argument, this Court would have to

reverse scores of cases stretching across two hundred years.

Additionally, if petitioners argument is accepted, very

fundamental rules will be changed. For example, if there is no

conclusive presumption of knowledge of the law, then ignorance

of the law will become a defense to criminal charges. If that

happens, the State will ultimately have a burden of establishing

knowledge of the law beyond a reasonable doubt. (Cf., In re

Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).) If

petitioner’s theory that only "reasonable" laws are binding, a

necessarily subjective notion, then it is a defense that the violator

vf a law felt that law to be “unreasonable.” If that is the law,

then there are no laws, only a series of suggested rules that

ore at will. Another definition

fF ¢} r why

tnis 18 anarcny

Dat 1 1) ¢ ¢ 2 ntire norton \f hh: } rr

re il » t \ v .) i@ entire ni 110Nn Ol wnal iaWws

re all about. Either laws can be relied on and govern the

vehavior of both individuals and the State or they do not.

Petitioner pea urge that they do not. This is wrong and

I

THE ISSUE IN THE CASE AT BENCH IS NOT

OF SUFFICIENT IMPORTANCE TO WARRANT

THIS COURT'S ATTENTION

This Court has specified the factors bearing on whether a

Petition for Writ otf Certiorari should be granted. In Rule 17,

this Court has stated that certiorari will be granted only "when

there are special and important reasons therefore." The case at

bar is simply not special and important; the fundamental legal

principles regarding the retroactive application of changes in the

law are well established, and the precise application of those

principles which is presented in this case will vanish after the

final resolution of a series of cases in Los Angeles County.

The issue presented by this case has an unique history. As

noied above, the California Supreme Court reversed itself on

whether intent to kill was an element of felony-murder based

"special circumstances" in November, 1987. Immediately after the

reversal became final in the Anderson decision, the California

Attorney General’s Office-issued a directive to all California

District Attorney's Offices stating that retroactive application of

Anderson to cases which had arisen between the decision in

Carlos and the decision in Anderson (the so-called “window”

cases), would be a violation of due process of law. (See,

Appendix A to this Opposition.) Shortly after the Attorney

General’s directive, the Los Angeles County District Attorney's

Office issued General Office Memorandum 88-17 (included in

Appendix B to this Opposition), concurring with the Attorney

General’s assessment and instructing its deputies not to argue

that Anderson be applied retroactively to the “window’ cases.

[his generated a substantial amount of controversy within the

Los Angeles County District Attorney's Office which led to the

issuance of General Office Memorandum 88-31, referred to by

some deputy district attorneys as the "both sides of our mouth"

memorandum. In this memorandum (also included in Appendix

B to this opposition), the Los Angeles County District Attorney s

f . ; Ly the ests ry ‘ st + ; nAtent ‘ leo ti

Otfice took the position that if proof of intent is_ clear he

kill rule, but if proof of intent is not clear, the prosecutor should

urge that Anderson be applied retroactively.

In its Petition for Review to the California Supreme

Court, petitioner stated that there are several pending cases in

Los Angeles County which occurred between Carlos and

Anderson. The decision in the case at bar will probably not

impact many of those cases because few contain a real intent to

kill issue and prosecutors will not advocate the retroactive

application of Anderson.

Petitioner has not cited a single case from another county

in which this issue has arisen. In preparation of the reply to the

California Supreme Court, the undersigned contacted

representatives of several California public defender offices. In

most areas there were no cases which presented the issue of the

retroactivity of Anderson. In those counties which reported

having such cases, the local district attorneys had followed the

California Attorney General's directive, not even suggesting that

Anderson be applied retroactively. There appears to be no

10

county other than Los Angeles in which the district attorney Is

ittempting to do what petitioner is attempting to do. Petitioner

a) ~ neve i, nted +} Th ‘ > , > | ‘ A les

as not disputed this. This issue is unique to Los Angeles

r

California courts in

o

1as been resolved by tl

ounty and

accordance with the views expressed by the California Attorney

General. That the Los Angeles County District Attorney

currently disagrees is insufficient reason to grant certiorari.

I]

THE JUDICIAL ELIMINATION OF THE

INTENT rO KILL ELEMENT OF

CALIFORNIA’S FELONY-MURDER BASED

SPECIAL CIRCUMSTANCES MAY NOT BE

RETROACTIVELY APPLIED rO

RESPONDENT'S CASE

\. Retroactive application of a change in the law which

eliminates an element of a capital offense is prohibited by under

the ex post facto clause of the United States Constitution.

As this Court has observed, the framers of the United

tates Constitution thought the prohibition on ex post facto laws

such moment that they included two bars on such laws

nstitution ne which enjoins the Federal government

" 7 “~¢ 4 bh » ‘oF ’ Pest . q < , ‘ } |

' inv the federal constitutional restrictions which

have been made applicable to the States only though the

operation of the Fourteenth Amendment, one which operates

directly against the States. (See, Kring v. State, 107 U.S. 221,

225-226, 2 S.Ct. 443, 27 L.Ed. 507 (1883).)

In 1798, this Court stated that a criminal law would be an

illegal ex post facto law if it met any of the following tests:

"(1) Every law that makes an action done before the

passing of the law, and which was innocent when done,

criminal, and punishes such action; (2) every law that

aggravates the crime or makes it greater than it was when

committed; (3) every law that changes the punishment and

inflicts a greater punishment than was annexed to the

crime when committed; (4) any law that alters the legal

rules of evidence, and receives less or different testimony

than the law required at the time of the commission of

the offense in order to convict the offender.” (Calder v.

Bull, 3 Dall. 386, 390, 1 L.Ed. 648 (1798).)

This test continues to be applied today. (See, e.g. Miller v.

Florida, 482 U.S. 423, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987);

Dobbert v. Florida, 432 U.S. 282, 53 L.Ed.2d 344, 97 S.Ct. 2290

(1977).)

There can be no question but that the California Court of

Appeal was correct in holding that the elimination of the intent

12

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This Court has never wavered from the Bouie rule, which has

been followed to invalidate retroactive applications of decisional

laws in Marks v. United States, 430 U.S. 188, 97 S.Ct. 990, 51

L.Ed.2d 260 (1977); Palmer v. City of Euclid, Ohio, 402 U.S.

544, 91 S.Ct. 1563, 29 L.Ed.2d 98 (1971); and Douglas v. Buder,

412 U.S. 430, 93 S.Ct. 2199, 37 L.Ed.2d 52 (1973) (see also,

Rabe v. Washington, 405 U.S. 313, 93 S.Ct. 993, 31 L.Ed.2d 258

(1972)), as well as many cases from the lower federal and

various state courts. Accepting petitioner’s argument will mean

overruling not only Bouie and Marks, the leading cases trom this

Court, but also a substantial body of law from other courts.

B. Petitioner's responses.

Petitioner has proposed two arguments in this Court and

another argument below in an attempt to have Boule and Marks

and similar cases overruled: (1) the ex post facto/due process

rule asserted in Bouie and Marks cannot apply to respondent

because his conduct was inherently wrong, and, therefore, he

could not claim to be in a position of relying on the law when

14

punishment is justified as a deterrent to crime, that deterrence

can occur only in those situations where the criminal was on

notice that he could receive the death penalty.

Petitioner’s argument was made and specifically rejected in

Moore v. Wyrick, 766 F.2d 1253 (8th Cir. 1985), cert. denied,

without dissent, 477 U.S. 1032, 106 S.Ct. 1242, 89 L.Ed.2d 350.

In Moore, the prosecution argued that even though there was

controlling precedent from the state supreme court to the effect

that the defendant’s conduct - participation in an armed robbery

which led to the accidental death of a victim at the hands of

another victim - was not a first degree felony-murder, the

defendant must have been on notice that his conduct was illegal,

and therefore could not avail himself of the Bouie/Marks rule.

The Eighth Circuit held that the controlling precedent from the

state supreme court placed the defendant on notice that his

conduct could not lead to a first degree murder conviction,

meaning that even though the defendant knew that engaging in

an armed robbery was illegal, he could not be charged with

16

knowledge that the accidental killing of a victim by another

victim would lead to a first degree felony-murder conviction.

The same is true in the case at bar. Respondent knew

that his conduct was illegal. However, at the time of his acts

there was controlling precedent from the California Supreme

Court to the effect that a non-intentional killing occurring during

the commission of a felony was not a capital offense. Therefore,

respondent could not have been on notice that an unintentional

killing would subject him to the death penalty; the law was clear

that it could not.

Significantly, petitioner does not even suggest that a

legislature could enact an ex post facto law validly affecting

malum in se crimes. That would be clearly illegal. (in re Medley,

134 U.S. 160, 10 S.Ct. 384, 33 L.Ed. 835 (1890); Miller v.

Florida, supra, 482 U.S. 423.) As this Court ruled in Bouie, a

State cannot do judicially that which it cannot do legislatively.

Therefore, petitioner’s "malum in se" argument is contrary to

Bouie and the legion of cases which follows it.

i

No court has accepted the malum in se versus malum

prohibitum rationale because it is wrong and inconsistent with

the requirement of notice and the prohibition against increasing

punishment after the act. Again, to accept petitioner’s position,

this Court would have to overrule many state and federal

decisions on this point, covering both judicial and legislative

changes in the law.

D. The "reasonableness" of the intent to kill element is not

constitutionally significant.

Petitioner’s primary argument is that Carlos was an

"unreasonable" decision, and therefore not subject to being relied

upon by the citizens of California. This premise is simply wrong;

the whole point of the doctrine of stare decisis is that a legal

system breaks down if the decisions of the highest courts are not

binding and subject to reliance by its citizens. Decisions of courts

of appeal and supreme courts do not simply resolve individual

disputes, they also make the law.

"Reasonableness" has never been the test, rather - reliance

on binding judicial precedent has been upheld regardless of

18

reasonableness. A contemporary example illustrates this. There

has probably been no action taken by the United States in this

century that has been more thoroughly repudiated than the

internment of Japanese-Americans during World War II.

However, this unreasonable action was upheld by this Court

twice. (Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 194,

89 L.Ed. 194 (1944): Hirabayashi v. United States, 320 U.S. 81.

63 S.Ct. 1375, 87 L.Ed. 1774 (1943).) Regardless of the fact that

this action has been determined to be "unreasonable" over the

years (see, e.g., Hirabayashi v. United States, 828 F.2d 591 (9th

Cir. 1987)), the fact that this Court approved it has been a

contributing factor to the denial of civil relief for the internees.

(See, e.g., Hohn v. United States, 782 F.2d 227 (D.C. Cir. 1986),

rhrg. denied 793 F.2d 304.) The rule of law, not some subjective

concept of "reasonableness," is controlling. If that is not the case,

citizens are not bound by laws which they subjectively believe to

be unreasonable.

L9

In Cole v. Young, 817 F.2d 412 (7th Cir. 1987), the

defendant urged that he had been denied due process of law in

a state criminal proceeding because state court decisional law in

effect at the time of his offense which defined the elements of

the crime with which he was charged was not applied to his case.

In response to this argument, the State urged that the decision

which the defendant was urging was incorrect and restricted by

subsequent cases.

The Seventh Circuit rejected this argument and ruled that

the defendant was entitled to the benefit of that earlier decision,

noting:

"This argument need not detain us long. It is not

our place to determine whether [the earlier case] was

correctly decided. Our sole task is to ascertain the

applicable Wisconsin law and (the earlier case] was the law

at the time of Cole’s offense. (Id., at 419, emph. added.)

Indeed, that is exactly the proper test: what was the law

when the alleged offense was committed? In the case at bar, the

law was that there could be no death sentence under a felony-

murder theory for non-intentional killers. That ends the inquiry.

20

[o adopt petitioner's argument, yet another long-established line

of cases will have to be overruled.

E. The Carlos decision, which interpreted the California death

penalty law as requiring an intent to kill as a prerequisite to

‘apital punishment for felony-murder, was not "unreasonable."

Even if this Court was to accept petitioner's

unprecedented claim that only "reasonable" laws are binding, it

is clear that the interpretation of California law which included

intent to kill as an element of felony-murder based special

circumstances was not unreasonable. Indeed, the reasonableness

f the whole concept of the death penalty for non-intentional

killers has been the subject of heated debate within this Court.

See, Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d

127 (1987).)

Petitioner misleads this Court when it asserts that Carlos

was based solely on a misreading of

this Court's decisions. ~*

An understanding of exactly what the Carlos opinion said and

how it reached the conclusion it did is critical to the proper resolution

of the "reasonableness" issue. Petitioner’s simplistic explanation of this

highly complex decision is misleading and simply inaccurate.

The California death penalty law attempts to satisfy the

requirement that there be a "principled distinction" between capital and

non-capital murders through the definition of several “special

circumstances," the presence of which allows the imposition of capital

sentencing. (People v. Green, 27 Cal.3d 1, 61, 164 Cal.Rptr. 1, 609

P.2d 468 (1980).)

Prior to 1978, California’s death penalty law was embodied in

a set of Legislatively created statutes, one of which, former California

Penal Code section 190.2, subdivision (c), contained two qualifications

on felony-murder based special circumstances: the defendant must have

been personally present during the act or acts which caused death; and

the defendant must have directly committed the death-causing act, or

physically aided its commission with the intent to cause death.

In 1978, the entire death penalty law was rewritten by popular

initiative. Many of the previous limitations, including the requirement

that the murder be wilful, deliberate, and premeditated, the physical

presence requirement, and the language relating to intentional killing

were absent from the initiative. Carlos v. Superior Court, supra, 35

Cal.3d 131, was the California Supreme Court’s attempt to deal with

the missing language regarding intent.

In the Carlos opinion, the California Supreme Court discussed

several issues in ruling that felony-murder based special circumstances

charged under the 1978 death penalty initiative include an intent to

kill as an element. The first step was to attempt to determine the

intent of the voters in passing the initiative. The voter pamphlet

regarding the death penalty initiative stated that the initiative was

aimed at changing the physical presence requirement of the earlier

death penalty law, but was silent on the intent to kill requirement

which was also part of that law. (35 Cal.3d at 143-145, particularly, fn

11, 12 and 13.) In concluding that the death penalty initiative did not

include a change in the intent to kill requirement, the California

Supreme Court noted:

"The adoption of a law to permit infliction of the death penalty

upon an accidental killer would be a momentous step, raising

grave moral questions. Nothing in the ballot arguments

suggested that the framers intended to take such a step.

[Footnote deleted.] We conclude that the history of the

initiative, as well as its wording, supports a construction limiting

the felony-murder special circumstances to persons who intend

to kill or aid in a killing. (35 Cal.3d at 145.)

The California Supreme Court then undertook to examine the

initiative in terms of California’s rules of statutory interpretation. It

22

Rather, Carlos was based almost entirely on an interpretation of

the requirements of California law. The discussion of this Court's

decisions merely supported the conclusion which was reached on

other grounds.

There was nothing which occurred in the period between

the Carlos and Anderson decisions to make one believe that

concluded that application of California’s long standing rule that

criminal defendants are entitled to the benefit of any reasonable doubt

about the construction of a penal law meant that the intent to kill

element must still be proven under the death penalty initiative. (35

Cal3d at 145-147.) In arriving at this conclusion, the California

Supreme Court examined the purposes of the felony-murder rule and

the death penalty and opined that the purpose of the death penalty

law was to distinguish between those murders which are deserving of

the death penalty from those which are not, reasoning that application

of the death penalty to only those persons who intentionally killed was

consistent with that purpose and consistent with traditional rules of

Statutory construction. (Ibid.)

Lastly, the California Supreme Court discussed this issue in

terms of its interpretation of this Court’s decision in Enmund v.

Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982) and

stated that Enmund could reasonably be interpreted as standing for the

proposition that the purposes of the death penalty are not served by

putting people to death for killings they did not intend to commit and

ruled that allowing this to happen would conflict with the Federal

Constitutional requirement that there be a “principled way" to

distinguish capital from non-capital murders. (35 Cal.3d, at 147-153.)

Later cases characterized this intent to kill requirement as an element

of felony based special circumstances. (E.g., People v. Anderson, supra,

43 Cal.3d 1104, 1139.)

23

Carlos was even erroneous.” However, after California's

2 Indeed, all of the outward signs were just the opposite. For

example, the State petitioned this Court for certiorari in People v.

Garcia, 36 Cal.3d 539, 205 Cal.Rptr.265, 684 P.2d 826 (1984), which

applied Carlos retroactively, and that petition was denied. (California

v. Garcia 469 U.S. 1229, 84 L.Ed.2d 366, 105 S.Ct. 1229 (1985).)

Significantly, no justice of this Court voted to grant the petition for

writ of certiorari in Garcia. During this interim period, there were no

scholarly articles attacking the intent to kill requirement embodied in

Carlos as unreasonable and unsupported by the law. As late as

December 31, 1985, Justice Mosk, the ultimate author of the Anderson

decision wrote an opinion reaffirming Carlos and chiding then-Justice

Lucas for his criticism of Carlos. (People v. Hamilton, 41 Cal.3d 408,

439, 221 Cal.Rptr. 902, 710 P.2d 981 (1985), Mosk, J., concurring and

dissenting.)

As Justice Broussard noted in his dissent in Anderson, the

California Supreme Court reversed thirteen death judgments due to

Carlos error. (People v. Anderson, supra, 43 Cal.3d 1104, 1152 and

1152, fn. 2, Broussard, J., dissenting.) As late as People v. Ratliff,

supra, 41 Cal.3d 675, the last death penalty reversed for Carlos error,

there was Only one dissenting justice who was critical of Carlos.

Additionally, scores of special circumstance cases in which life

imprisonment without possibility of parole was imposed were reversed

by the California courts of appeal.This is hardly evidence that Carlos

was about to become "unreasonable."

Petitioner makes much of the decisions in Tison v. Arizona

supra, 481 U.S. 137, and Cabana v. Bullock, 474 U.S. 376, 106 S.Ct.

689, 88 L.Ed.2d 704 (1986) as undermining Carlos. Bullock has

absolutely no impact on Carlos and the necessary impact of Tison is

minimal. In Bullock, the defendant was convicted by a jury of capital

murder and, in a sentencing hearing, the jury also found that two

Statutory aggravating circumstances were true and that they were not

outweighed by any mitigating factors. The jury instructions which were

given did not require a finding that the defendant either killed or

intended to kill as thought to be required by Enmund v. Florida

supra, 458 U.S. 782. This Court’s decision in Bullock was procedural,

holding that the “intent to kill” issue need not be decided by the jury

and could be left to the trial judge or an appellate court to decide.

Indeed, the ultimate result in Bullock was an order remanding the

24

matter to the Federal District Court with directions to issue a writ of

habeas corpus vacating the death sentence and leaving the state with

the option of reimposing the death sentence after making a finding

that Bullock either killed, attempted to kill, or intended to Kill.

(Cabana v. Bullock, supra, 474 U.S. 376, 390-392.)

Bullock’s impact on California law was discussed twice in

California legal materials prior to the Anderson decision. In People v.

Payne (review granted, opinion published at 195 Cal.App.3d 1495, 223

Cal.Rptr. 458 (1986) to permit tracking pending review), Bullock was

discussed in Justice White’s dissent from the reversal, and he noted

that Bullock would permit an appellate court to make the intent to

kill determination if the jury failed to do so. (195 Cal. App.3d at 1505.)

Former California Court of Appeal Justice Robert Thompson

described Bullock as affecting only the right to a jury finding at the

sentencing phase of a capital trial and noted that it empowers the trial

judge to make the intent to kill finding. ("Judicial Independence,

Judicial Accountability, Judicial Elections and the California Supreme

Court: Defining the Terms of the Debate,” 59 So.Cal.L.Rev. 809, 850.)

This, he reasoned, called only for a reassessment of Garcia’s concepts

of harmless error when Carlos error existed, not the intent to kill

requirement itself. (Ibid.)

A careful reading of Bullock leads to the conclusion that this

Court was not backing away from any intent to kill requirement which

may have existed in its jurisprudence at that point. If anything, the

Bullock decision reaffirmed the requirement but allowed a broader

procedure for fulfilling it. This result is supported by the reaction of

California courts to Bullock. Both People v. Burgener, 41 Cal.3d 505,

536-537, 224 Cal. Rptr. 112, 714 P.2d 1251 (1986), and People v.

Ratliff, supra, 41 Cal.3d 675 were decided after Bullock and resulted

in reversals for Carlos error. Indeed, in Ratliff, the prosecution

conceded Carlos error. (41 Cal.3d, at 698.) Furthermore, California

courts of appeal still applied Carlos and reversed life without parole

judgments based on Carlos error after Bullock was decided. (E.g.,

People v. Smith, 188 Cal.App.3d 1495, 1505-1516, 234 Cal.Rptr. 1495

(1987); People v. Reynolds, 186 Cal.App.3d 988, 233 Cal.Rptr. 596

(1986); People v. Arreola, 186 Cal.App.3d 1570, 1575-1576, 231

Cal.Rptr. 472 (1986).) It is clear that Bullock did nothing to render

reliance on Carlos unreasonable.

The impact of Tison v. Arizona, supra, 481 U.S. 137 on

retention clection resulted in the appe:atment of three new

Justices to the Supreme Court, the new Court reexamined the

bases of the Carlos decision and “reinterpreted” much of the

same material that it had in Carlos. The Court reached the

Opposite result, reversing Carlos to the extent that it required

proot of an intent to kill for actual killers. (People v. Anderson,

supra, 43 Cal.3d 1104 > Until Anderson was decided, there was

California's death penalty law turned out to be enormous; it ostensibly

precipitated Anderson's reexamination of Carlos. (People v. Anderson

supra, 43 Cal.3d 1104, 1138-1141.) However, when Tison was decided,

its necessary impact was minimal. Tison held two things: there is no

federal intent to kill requirement for actual killers; and aiders and

abettors may be capitally prosecuted if they harbor ‘reckless

indifference” to whether someone dics. Admittedly, this was a retreat

from what was stated in Enmund, but it did not mean that Carlos was

necessarily undermined. This Court's reading of California law was

inconsistent regarding both its requirements and Tison’s potential

impact. (Compare, 481 U.S. 153, fn. 8, to the dissent of Justices

Brennan, Marshall, Blackmun and Stevens, 481 U.S. 175-176, fn. 13.)

At the threshold, the Court examined Enmund v. Florida

supra, 458 U.S. 782 in light of its reading of Cabana v. Bullock, supra

474 U.S. 376 and Tison v. Arizona, supra, 481 U.S. 137 and decided

that it had interpreted Enmund too broadly. (People v. Anderson

supra, 43 Cal.3d 1104, 1138-1141.)

Having decided that one of the “bases” on which Carlos had

rested was proven “unsound” (43 Cal.3d at 1141), the California

Supreme Court clected to reconsider whether intent to kill is an

element of felony-murdcr based special circumstances. It reanalyzed the

lamguage of the voters’ pamphiet and the other legislative histor

Surrounding the 1978 death penalty initiative and reached th

26

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ircumstance in the Case | an actuai Kilic! > Val h 2 Li4i-lLi4s

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MCVCTSING itS Cariicl atemcnts. he new Caliornia SuUDTcCmMme TOU!

ie , «} bh _ ' > ’ in : » 7 ’ nao

Mmcciced ihalt ine language f Penal Code section 190.2 was n pcr

ambiguous and came to the conciusion that. contrary to the way they

» ve be ® nr 7 ie* " rm : . :

su een ad } revit) iv. ine CXIrinsic acs wricn nad prey U y Des

a4 : | " ‘ " ; " x " row : he e* >

= tm termine icrisiative intent | “A CG tne CONCUSSION at {

ter Md Tf intend | make an intent | Kili an ¢ ment i u

: ; ; ry so) rrmarmcran ‘ ‘3 ¢ if ’ ‘7 ‘2 mrt that

th. IMAL SVC Id! CLIC UMD LATA ’ ms | Vv a ii* ’ : 4 Pi

tent | Kill Was not necessary |t meaninegiullv distinguish deat!

rom non-death cases 43 Cal.3d at 1143-1146.) [The Supreme Cou!

: : : e> : ’? ’ nr > : : : .

v4 ciccd it a cecal pena iw W . j

KILCTS Was I jonger a momentous sicp ving nou b [ } ive

ral questions” 43 Cal.3d at 1145, fn. &

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ine end resuil was at Cai 5s wa ve } j

,.naw rx +> " ’ : . : “at : :

. f e state need no ionger prove a . ;

emecni Of a iciony Dased Special CITCUMSLANCE in U <AS4 [fan actua

killer. While Carlos mav have had an extreme ultimate result. the

anuiornia Supreme Court 1ustices. if was a decision thal was consonant

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rciit ry ry gaert tl. ) ert : » PF 7, ¥ i. ‘ ’

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APPENDIX A

ors K VAN DE KAMP

Attorney Caeneral

——

State of Californse

DEPARTMENT OF JUSTICE

1SiS K STREET. SUITE

PO BOX 94.

SACRAMENTO 942 44-

916) 446

January 8, 1988 LA. COUNTY

gaa lle:

Tos ALL DISTRICT ATTORNEYS oe ip

ULE

Re: Peovle v. Anderson

In Peovle v. Anderson (1987) 43 Cal.3d 1104, the California

Supreme Court overruled its prior decision in Carlos v. Suverior

Court (1983) 35 Cal.3d 131, insofar as that case had required the

jury to find an intent to kill as an element of felony-murder

special circumstances for the.actual killers. In the wake of

Anderson, questions have arisen as to its possible retroactive

application, in a variety of procedural situations.

The cases to which Anderson might be applied may be grouped into

two classes: (1) those in which the murder was committed before

the Carlos decision; and, (2) those in which the murder was

committed before Anderson, but after Carlos. The two classes

share a number of factual variations; cases in either class micht

now be in retrial, initial trial, or somewhere in the appellate

process. The advice offered in this letter cuts across all such

distinctions; within each class, cases may be treated similarly.

Anderson may be fully applied to the pre-Carlos class of cases.

The California Supreme Court so applied it in Peoole v. Gates

(1987) 43 Cal.3d 1168, to a murder which hed been committed in

1979. Even where the case has been remanded in light of Carlos,

application of Anderson would likely te appropriate. Nothing in

the law of the case doctrine would preclude it. (See Peovle v.

Sequeira (1982) 137 Cal.App.3d 898.) If the case is now in

trial, a motion to amend the information to allege the special

circumstance could be made, assuming proof of same was presented

at the preliminary hearing. (Penal Code sec. 1009; Talamantez v.

Suoerior Court (1981) 122 Cal.App.3d 629.)

However, in our judgment Anderson should not be applied to those

cases in which the murder occurred in the Carlos-Anderson

"window" period. (Marks v. United States (1977) 430 U.S. 188;

Boute v. Citv of Columbia (1964) 378 U.S. 347.) Marks and 2ouie

have been applied by the United States Court of Apovceals for tne

To: ALL DISTRICT ATTORNEYS

Page 2

January 8, 1988

Ninth Circuit to precisely this situation. In United States v.

Goodheim (9th Cir. 1981) 651 F.2d 1294, the panel held that an

intervening judicial decision interpreting a statute more

stringently against the defendant, could not be applied to hin.

He was entitled to rely on the judicial construction which

obtained previously, at the time he committed his crime.

(Compare Darnell v. Swinney (9th Cir. 1987) 823 F.2d 299.) Even

if a case could survive judicial scrutiny in California state

courts, we béTieve it might be seriously compromised when

considered on federal habeas corpus review. Accordingly, we

recommend against Anderson’s application to such cases.

Should you have questions in this matter, please contact our local

death penalty coordinator in your area: DAG Ward Campbell,

Sacramento, (916) 324=5251; DAG Dane Gillette, San Francisco,

(415) 557-1475; DAG Tom Willhite, Los Angeles, (213) 736-2193;

and, DAG Mike Wellington, San Diego, (619) 237-7666.

Very truly yours,

JOHN K. VAN DE KAMP

Attorney General

STEVE WHITE

Chief Assistant Attorney General

SW:hfw/vdb

a ‘

:

4

ene : < e Meo . . . “he - ,

- . i * 4 a ‘ vs » Be perd. <. . . m

” ‘ oe i

ere ca op ate . te t : a eme < . 4 6 fe

. * al masta ° ¥ . e = t tne actual Ris sel.

The Summary stated that the A © ,@ means that we noe

ive ¢t prove, at the retrial] fa ase wv h has ee eversed,

at the actual killer had an intent t kill

The po se f this pemora 2 t modi f this tatement The

ex t factc nuses £ the federal and 4liifornia constitutioas

mi ¢ the powers - ecislature ar A ane f their own force

Ply to the judicial branch Nonetheless, the principle f faic

warming uncerliying the ex post facto clauses limits the retro-

active application of judicial decisions Due process of law is

iolated when a defendant convicted under an unforeseeable

mntecpretation of a statute which expands its score. Boule v.

mbia (1964) 378 0.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894;

Mark v. United States 1977 430 5S. 1488, 97 $.Ct 990, 51

Ed.2¢ 260.) The due pe ess analog f the ex post fact

Lauses al160 applies to special mstances ecole v

Weidert (1985S) 39 Cal.3d 836, 850-85] a

Ancerson can be validly applied to cases involving murders which

took place before the date Carlos v perior Court was decided,

-@., December 12, 1983. Due process of w is not violated bv

,

"

etroactive application sinc tA

Killer whose

. - AA

offense took nfo

reasonadly claim that the Anderson no diag constitutes mn uncore-

toc See Forman v. Wolff (9th Cis.

Sseeadle statu

1979) 590 F.2d 283.) The California Supreme Court has

retrospectively applied Anderson in People v. Gates (1987) 43

Cal.3d 1168, to a murder which had been committed in 1979. Even

where the case has been remanded in light of Carlos, application

of Anderson would likely be appropriate. Nothing in the law of

the case doctrine would preclude it. (See Peovle v. Sequeira

(1982) 137 Cal.App.3d 898.) If the case is now in trial, a

motion to amend the information to allege the special circum-

stance could be made, assuming proof of same was presented at the

preliminary hearing. (Penal Code Section 1009; Talamantez v.

Superior Court (1981) 122 Cal.App.3d 629.)

On the other hand, a very cogent (although perhaps not conclusive

argument can be mounted to support the proposition that due

process of law is violated by the retrospective application of

the Anderson holding with respect to intent to kill as to murders

which were committed on and after the date Carlos was decided

(i.e., December, 1983, but before the date of Anderson

(October 13, 1987).. (See e.g., Moore v. Wvrick (8th Cir. 1985)

766 F.2d 1253; United States v. Goodheim (9th Cir. 1981) 651 F.2d

1294; but see Darnell] v. Swinney (9th Cir. 1987) 823 F.2d 299.)

Because of the high probability of the validity of this argument,

it is the policy of this office that the Anderson holding

regarding intent to kill will not be relied upon with respect ¢

murders committed on or after December 12, 1983, until the date

Anderson was decided, i.e., October 13, 1987.1/

a

-

The Attorney General's Office has adopted a position with

respect to the retrospectivity of Anderson which is essentially

identical with that adopted herein.

l. It cannot be plausibly ergued that the Carlos window

extends to the date that Anderson became final (November 12,

1987) because the Anderson decision on October 13, 1987, gives

fair notice of foreseeable statutory interpretation.

BJECT RETROACTIVITY OF PEOPLE V. YDERSON

INTENT TC KILL

ATE MARCH 28, 1988

(1987) 43 Cal.3d 1104, the Supreme Court eliminaced

rson

he incent-to-kill element of the felony murder special circumstance with

ct to the actual killer, thereby overruling Carlos v. Suoerior Court

) 35 Cal.3jd 131. Anderson cleariv applies retroactively to murders

micced before the date of che Carlos decision, December !2, 1983, as

the murders in both Anderson and Peoole v. Miranda {1987) 44 Cal.3d 57

m (See Peovie v. Easter (1987) 197

.

a

ow

ww o

.

were committed before this date.

Cal.App.3d 183.)

General Office Memorandum 88-!7 (February 4, 1988), sec forth an office

policy that the Anderson holding regarding intent to kill would not be relied

upon for murders committed between December 12, 1983, the date of the

Carlos decision, and Ocrober 13, 1987, the date of the Anderson decision.

This time period has been referred to as the "Carlos-window” period.

Although the law regartcing the retroactiviry of Anderson is unclear, we

this

believe such an interpretation is prudent for most cases coming within ¢

time period.

Thus, in a Carlos-window case, if a trial deputy belleves the identity

of the defendant as the actual killer and the existence of his incenc

can be proven beyond a reasonable doubt, the deputy should have the jury

This will avoid any potential reversal

to kill

instructed in accordance with Carlos

and retrial because of a Carlos error which was not essential to a

conviction.

in some cases coming within this Carlos-window period, the trial deputy may

be uncertain whether a jury would reasonably find thac the defendant, who

the actual killer, had an intent to kill. In these cases, the trial deputy

ould argue that Anderson applies retroactively. in our judgment, this is

the better view and should be argued when necessary to insure a conviction

rre

appropriate charges,

y)

A trial deputy. advocating the retroactive aoplication of Anderson should

actempc co litigate this issue before crial. The prosecutor should amend the

special circumstance allegation to state that the defendant was the actus!

killer and that he/she had no intent to kill. The trial deputy should explain

to the court thac chis procedure will enable the issue of retroactivity to be

settied before trial, as either side may seek appellate review of the trial

court's ruling before the trial commences. Thus, the possibility of @ retrial

on this issue would be avoided.

A prosecutor may amend a pleading any time before the defendant pleads or

a demurrer to the original pleading is sustained. Otherwise, the pleading

may only be amended with the court's permission. (Pen. Code Section 1009.)

If the pleading is amended as suggested, the defense could demur to the

complaint on the basis that "the facts do not constitute 8 public offense,” or

that "it contains matter which, if true. would constitute a legal justification

or excuse of the offense charged, or other legal bar to the prosecution.”

(Pen. Code Section 1004.) Either party may seek immediate appellate review

of the trial court's decision. A sample trial brief on this issue will be

available from the Appellate Division.

ck