# Opposition Brief — California v. Baert > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_1082%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1989 - **Citation:** 492 U.S. 918 ## Text I _ ) eee creel i {. Sopmona Gort, erIek D ~ R, j 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 Fee - = es reer ae ea an rea re ea TP Ty ory aT ze : mt Taos ott A hil a ae meat 46 oh a Saeed 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 ~ 4 " . i?s?5.5 ) 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) > ee ct IN THI vi F THE UNITI AI] i” : if | AT] ’ ? TA Petit ¥ H I i IAMES |! - hd ¢ ; 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 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 7 Ay vA , [ f -% 7 : ’ 4 ' ‘ : : , , , " , | O! j nat ining nat f ry | ] ne ry " ’ ; he “me hU ry nt ‘ } j il en Kili Was al | y isca ry : : . " ;*) 4 ‘ ‘* : ircumstance in the Case | an actuai Kilic! > Val h 2 Li4i-lLi4s *, , ‘* , _ . ’ + . ' . sf . 7 rr rr? 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. & T . r . sb vt rr : ; - 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 -Foda li sort . 4 ry . F. Respondent 1 | not prove “actual reliance rciit ry ry gaert tl. ) ert : » PF 7, ¥ i. ‘ ’ A ' . j > ~~ vey ; | Try puhaa’ ' = weer Cera ; ry i } ‘ Lie} ; . ; ; ‘ ‘ ' ; | " ‘ " ww ’ ’ ’ ‘ 7, ¢ ; r 7 ‘ ‘ \y : CONCLUSION ; ; | ; | { ‘ 9 ‘ q LU bial ‘ ; i} y ' ‘ ? . /} iws y¥ \ 1 ' ' ’ : , i \ yal ‘ . ’ " " ' rveue : J LJ LLY eal “ ’ \ : tii ; ‘ ICS ; \ . i ¥ and ; ; , ‘ \ PUBLI a2 ,* * ’ , N EL AA i : J 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_1082%3A2. Public record. Not legal advice.