# Amicus Curiae Brief — Tuilaepa v. California

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0519%3A10

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1994
- **Citation:** 512 U.S. 967

## Text

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No. 93-5131 - he
Ne. 93-511 ¢ | YAN 24 1994

#80} ens
In the Supreme Court

OF THE

United States

OCTOBER TERM, 1993

PAUL PALALAUA TUILAEPA (No. 93-5131),
Petitioner,

VS.

THE STATE OF CALIFORNIA,
Respondent.

WILLIAM ARNOLD Proctor (No. 93-5161),
Petitioner,

VS.

THE STATE OF CALIFORNIA,
Respondent.

On Writ of Certiorari to the United States
Court of Agyens | for the Ninth Circuit

BRIEF AMICUS CURIAE OF THE
CALIFORNIA APPELLATE PROJECT
IN SUPPORT OF PETITIONERS

CALIFORNIA APPELLATE PROJECT CLIFFORD GARDNER*
GAIL R. WEINHEIMER GARDNER & DERHAM

Legal Director 900 NORTHPOINT STREET
Cocoa BUILDING, SUITE 450

STEVEN W. PARNES SAN FRANCISCO, CA 94109

DANIEL N. ABRAHAMSON

Staff Attorneys MELISSA W. JOHNSON

4104 24th Street, #374
One Ecker Place San Francisco, CA 94114
Suite 400

Attorneys for Amicus Curiae
*(Counsel of Record)

O_O
BOWNE OF SAN FRANCISCO. INC. + 343 SANSOME ST + SF. .CA 94104 + (415) 362-2300

San Francisco, CA 94105

Ms

TABLE OF CONTENTS

INTEREST OF AMICUS CURIAE..................
SUMMARY OF ARGUMENT .............--..0005:
fs, SPP P POTOSI TT TTTTTETIL LL

THE AGGRAVATING FACTORS THAT A CALIFOR-
NIA JURY WEIGHS IN DETERMINING
WHETHER A DEFENDANT SHOULD LIVE OR
DIE ARE CENTRAL TO THE PENALTY DETER-
PEPNENDT vc cednccccccsseeveetorovedscosvoseces

II

WHERE A SENTENCING JURY IS INSTRUCTED
TO WEIGH AGGRAVATING AND MITIGATING
CIRCUMSTANCES IN DETERMINING
WHETHER THE DEFENDANT SHOULD LIVE OR
DIE, INSTRUCTING THE JURY TO WEIGH AS
AN AGGRAVATING CIRCUMSTANCE THE “CIR-
CUMSTANCES OF THE CRIME” OR THE “AGE”
OF THE DEFENDANT VIOLATES THE EIGHTH
ae he cp de ccececadenendes 60céeee.
A. An Aggravating Factor Is Unconstitutionally Vague
Where Its Own Terms Furnish No Discernible Stan-
dards For The Sentencer And The State Courts Have
Failed To Provide A Limiting Construction .......

B. Instructing The Jury In The Bare Terms Of Penal
Code Section 190.3(a) To Weigh The “Circum-
stances Of The Crime” Aggravating Factor In Decid-
ing Whether A Defendant Should Live Or Die,
Without Any Limiting Construction, Is Unconstitu-
Re dakbckkeecavsabekbnestanewksdentoeerce

C. Allowing The Jury To Weigh The Aggravating Factor
Of The Defendant’s Age, As It Has Been Broadly
Construed By The State Supreme Court, Violates
The Eighth Amendment ..........ccccccccccess

ll

11

12

TABLE OF CONTENTS

Page

III

BECAUSE THE CALIFORNIA SUPREME COURT
HAS NOT REQUIRED THAT JURIES BE IN-
STRUCTED AS TO WHICH OF THE FACTORS
CONTAINED IN PENAL CODE SECTION 190.3
ARE EXCLUSIVELY MITIGATING, THE AB-
SENCE OF STATUTORY MITIGATING FACTORS
HAS BEEN USED TO CREATE ILLUSORY AG-
GRAVATING FACTORS. ...cccccsnvcesacneeeen 22

COTE ATIIIIS «sc cccsccsvesnensecnenenn 29

TABLE OF AUTHORITIES
Cases
Page
SB. co, 113 S. Ct. 1334

—_— of - . 0 Ee 11, 12, 27
Arnold v. State, 224 S.E.2d 386 (Ga. 1976) ............ 28
Bacigalupo v. California, 506 U.S. ——, 113 S. Ct. 32 :

PUM IPEUGGREGuGeGeedbeeCoecccccccccceccess
oan v. Florida, 463 U.S. 939 (1983) .............04.. 6
Boyde v. California, 494 U.S. 370 (1990) ............... 4
California v. Brown, 479 U.S. 538 (1987) .............. 4
California v. Ramos, 463 U.S. 992 (1983) .............. 4

Cartwright v. Maynard, 822 F.2d 1477 (10th Cir. 1987),
aff'd, 486 U.S. 356 (1988) .... 2... eee eee nes 12
Clemons v. Mississippi, 494 U.S. 738 (1990)............ 12
Espinosa v. Florida, 505 U.S. __., 112 S. Ct. 2926 ae

PCED ee ee ace eeeeeescedecccccccccccces }

a... v. Georgia, 408 U.S. 238 (1972) ............5.. 12
Godfrey v. Georgia, 446 U.S. 420 (1980).............. 11,12
Gregg v. Georgia, 428 U.S. 153 (1976) ................ 3,11
Lanzetta v. New Jersey, 306 U.S. 451 (1939) ........... 7
Lewis v. Jeffers, 497 U.S. 764 (1990) .............045.. 11
Maynard v. Cartwright, 486 U.S. 356 (1988)......... 3, 12, 19
McCleskey v. Kemp, 481 U.S. 279 (1987).............. 27

Pensinger v. California, __ US. ——, 112 S. Ct. 351
tee eee hecccceccecceccccccces: 4,8
People v. Adcox, No. S004558 ... 0... cece eee 15

People v. Allison, 48 Cal.3d 879, 771 P.2d 1294 (1989), cert.
denied, 494 U.S. 1090 (1990)... 22... eee, 26
People v. Allison, No. S004649 .... 2... 6... ccc cece 15,17
People v. Anderson, No. S004385 ................. 16, 18, 20
People v. Ashmus, No. S004723...... 2... 6.6 eee eens 18
People v. Avena, No. S004422 ......... 2... 6. eee 18, 20, 21
People v. Babbitt, No. SO022692 ......... 2... 66. e eens 20, 21

People v. Bacigalupo, 6 Cal.4th 457, 862 P.2d 808 (1993),

on remand, from Bacigalupo v. California, 506 U.S.
cee cc cosesbecesesccecccccs 6,7

iv

TABLE OF AUTHORITIES

CASES
Page

People v. Bean, 46 Cal.3d 919, 760 P.2d 996 (1988), cert.

denied, 494 US. 1038 (1990)... 1... ccc ccccccceees 8, 20, 22
People v. Bean, No. S004387 .... 2... 2. cee cece cece 17, 18
People v. Beardslee, 53 Cal.3d 68, 806 P.2d 1311, cert.

Fie ee ee ED ccc cccccccccccsccecces 26
PURGES CER, Des GED osc ccccccccccccccccccccccs 20
People v. Belmontes, No. S004467................. 15, 17, 18
People v. Benson, No. SO04763 ... 1... ccc cece cece 15,17
People v. Berryman, No. S008182 ....................4. 21
People v. Bittaker, 48 Cal.3d 1046, 774 P.2d 659 (1989),

Gave. GHERE, GEG We. GEO CITED oc ccccccccccccccces: 14
PURGES G, GE, POU GD o cccccccccescccccccscees 17
People v. Boyd, 38 Cal.3d 762, 700 P.2d 782 (1985) ..... 5
People v. Boyde, 46 Cal.3d 212, 758 P.2d 25 (1988), afd,

tana s pads ccbandvededéeudeueess 8
People v. Boyette, No. S032736 ........ cece ce ceeees 20, 21
People v. Brown, 40 Cal.3d 512, 709 P.2d 440 (1985), rev'd.

Se it ebnc ado andns cdusd dumeveesuc 5,6
People v. Brown, 46 Cal.3d 432, 758 P.2d 1135 (1988), cert.

denied, 489 U.S. 1059 (1989)................... 22, 26, 27
People v. Brown, No. S004451 ....... 2... 66. ccc cee 15, 18
Pompee ©. Cate, Die. BROS on. ccc ccc cc ccccccccccce 17,18
People v. Carpenter, No. S004654 ................. 16, 17, 18
People v. Carrera, No. S004569 ................... 14, 16, 20
Pempee V. Cimie, Die, BCID on. ccc ccc ccccccccccces 17
People v. Clark, 3 Cal.4th 41, 833 P.2d 561 (1992), cert.

Ce ee i re rvenseeseececes 9
People v. Coddington, No. SOO8840................... 15, 18
People v. Coleman, 48 Cal.3d 112, 768 P.2d 32 (1989), cert.

denied, 494 U.S. 1038 (1990)... 2.2... 00. 22
People v. Comtois, No. SOI7116 ..............0000005. 18
People v. Davenport, 41 Cal.3d 247, 710 P.2d 861

ST s+ cnnkhheeeneaWbadenscedcecccecesces 23, 24, 26, 27
Proagee ©. Dawn, Pee. GORGERS.. cc ccccccccccccccess 16

People v. DeSantis, No. S004706.................0005. 20

Vv

TABLE OF AUTHORITIES

CASES
Page
People v. Deere, No. S004722 .... 2... 6. e cece eee eens 17
People v. Douglas, 50 Cal.3d 468, 788 P.2d 640 (1990),
cert. denied, 498 U.S. 1110 (1991) ......... 66. eee ue 9, 22
People v. Dunkle, No. S014200 ......... 2... eee eeeeeee 16
People v. Edwards, 54 Cal.3d 787, 819 P.2d 436 (1991),
cert. denied, 113 S. Ct. 642 (1992) ...... 0.6. ee eeee 13, 22
People v. Edwards, No. SO004755 ....... 2... 2... ee eeees 15, 18
People v. Fairbank, No. S012032 ..............- essen 20
People v. Fauber, No. SOOS868 ...............055- 16, 17, 18
People v. Freeman, No. S004787 .................. 14, 16, 18
People v. Frierson, 25 Cal.3d 142, 599 P.2d 587 (1979)... 5
People v. Frierson, No. S004761 ............00e ee eeeee 14
People v. Gallego, 52 Cal.3d 115, 802 P.2d 169 (1990), cert.
ented, 112 S. Ct. S37 CIDA) ....cccccccccccccccees 26
People v. Ghent, 43 Cal.3d 739, 739 P.2d 1250 (1987),
cert. denied, 485 U.S. 929 (1988) ...... 0... cece eeues 9,24
People v. Ghent, No. S004309 ..... 2.2... cc eee ene 15, 18, 20
People v. Gonzalez, 51 Cal.3d 1179, 800 P.2d 1159 (1990),
cert. denied, 112 S. Ct. 117 (1991) ............ 9, 22, 25, 26
People v. Guzman, 45 Cal.3d 915, 755 P.2d 917 (1988), cert.
denied, 488 U.S. 1050 (1989).................00055. 9
People v. Hamilton, 48 Cal.3d 1142, 774 P.2d 730 (1989),
cert. denied, 494 U.S. 1039 (1990) ............ 9, 23, 25, 27
People v. Hamilton, No. S004363 .............05cceees 16
People v. Hardy, 2 Cal.4th 86, 825 P.2d 781, cert. denied,
Se had cnc cccccecicscicceccecccs 9,14
People v. Hawkins, No. SO14199 .... 2... 0... e eee eee 15
People v. Hendricks, 44 Cal.3d 635, 749 P.2d 836, cert.
denied, 488 U.S. 900 (1988)... 2... 6... cece eens 8
People v. Howard, 1 Cal.4th 1132, 824 P.2d 1315, cert.
GRE, BED Ee es SE GED co ccccccccccccccccccces 24
People v. Howard, No. S004452...............005. 15, 17, 24
People v. Jackson, 28 Cal.3d 264, 618 P.2d 149 (1980), cert.
Gontad, GEO UE. WEES CIGSE)... cccccccccccccccccess 24, 25
People v. Jackson, No. S010723...... 2... 6.2.0 eee eeeees 17

vi

TABLE OF AUTHORITIES

CASES
Page
People v. Jennings, 46 Cal.3d 963, 760 P.2d 475 (1988), cert.

dented, 409 US. 1091 (19GB)... nec cccccccccccccces 20
People v. Jennings, No. S004754 .. 0... cece es 15
People v. Kaurish, 52 Cal.3d 648, 802 P.2d 278 (1990),

cert. denied, 112 S. Ct. 121 (1991) ............. 5, 9, 16, 27
People v. Kaurish, No. S004640...... 2.0... oe eee 20
People v. Kelly, 1 Cal.4th 495, 822 P.2d 385 (1992), cert.

GEER, BED Te Gs Be GUND cc ccccicccccevcccccess 26
People v. Kimble, No. S004364 ............. 0.060045. 17, 20
People v. Kipp, No. S004784 ... 0.20.0... eee enee 17
PORED D. TEs CUES GED co ccccccccccccccccccsccece 17
People v. Leach, 41 Cal.3d 92, 710 P.2d 893 (1985) ..... 20
People v. Livaditis, No. S004767 ..................05.4. 16
People v. Lucas, No. SOO4788 ....... 0... cece cee 14, 16
People v. Lucero, 44 Cal.3d 1006, 750 P.2d 1342

DE ARSON UUAUUREDHEDES bE6s 6eerecsédcccccesses 23, 26
People v. Lucero, No. SOI2S6S ..... 2... cece cece eeees 18
People v. Lucky, 45 Cal.3d 259, 753 P.2d 1052 (1988), cert.

denied, 488 U.S. 1034 (1989)... . 2.22.06. 19
People v. McLain, 46 Cal.3d 97, 757 P.2d 569 (1988),

cert. denied, 489 U.S. 1072 (1989) .................. 8, 22
People v. McLain, No. S004370........ 2... ....0005.. 15, 18
People v. McPeters, No. S004712 ................0005. 16
People v. Melton, 44 Cal.3d 713, 750 P.2d 741, cert. denied,

Cl i cineneedccescccsduecescedeuess 23
People v. Melton, No. SO004518 ...........0 0000000000. 17
People v. Miranda, 44 Cal.3d 57, 744 P.2d 1127 (1987), cert.

denied, 486 U.S. 1038 (1988)...... 2... 0.02. eee 24
People v. Miranda, No. S004464 ..... 2.0.0.0... 0 0005.. 15
People v. Mitcham, | Cal.4th 1027, 824 P.2d 1277, cert.

GES Be Oe Gs UD ccc ccccewccccccccccses 2i
People v. Montiel, 5 Cal.4th 877, 855 P.2d 1277 (1993) ..9, 26
People v. Morales, No. S004552.................0005. 14, 15

People v. Nicolaus, 54 Cal.3d 551, 817 P.2d 893 (1991),
cert. denied, 112 S. Ct. 3040 (1992) ................ 13, 22

vii

TABLE OF AUTHORITIES

CASES
Page
People v. Noguera, 4 Cal.4th 599, 842 P.2d 1160 (1992).. 13
People v. Noguera, No. SOOS170 ....... 2... 6... ec eeees 20
People v. Osband, No. S005233 ........ 6... c eee eee nee 15
People v. Padilla, No. S014496...... 6.6... e cece eens 16
People v. Phillips, 41 Cal.3d 29, 711 P.2d 423 (1985) .... 17
People v. Pinholster, No. S004616 ........ 66... eee ene 20
People v. Proctor, 4 Cal.4th 499, 842 P.2d 1100 (1992),
cert. granted, 114 S. Ct. 598 (1993) ......... 6, 9, 13, 23, 24
People v. Raley, 2 Cal.4th 870, 830 P.2d 712 (1992), cert.
denied, 113 S. Ct. 1352 (1993) ..... 66.66 ccc cee eens 24
People v. Raley, No. SOOS870....... 2... e es 21
People v. Reilly, No. SOO4607 ..... 2... 6. cece ce ees 17
People v. Rodriguez, 42 Cal.3d 730, 726 P.2d 113
(thee bbhcoeneucecaceoocccescvs 19, 24
People v. Rundle, No. SO12943 ............ 66-6 e ec eees 20
People v. Samayoa, No. S006284....... 2.6... cece eee 17
People v. Sandoval, 4 Cal.4th 155, 841 P.2d 862 (1992),
cert. granted, in part, 114 S. Ct. 40 (1993) ........... 22
POD Gs SUS ED ccc cccccccccccccccccccees 17
People v. Sims, 5 Cal.4th 405, 853 P.2d 992 (1993)..... 13, 24
People v. Stewart, No. SO20803 .............. 066 cee ee. 15
People v. Tuilaepa, 4 Cal.4th 569, 842 P.2d 1142 ..... 6, 10, 13
People v. Visciotti, No. S004597 .................0055. 15
People v. Waidla, No. SO20161 ..................0004. 16
People v. Walker, 47 Cal.3d 605, 765 P.2d 70 (1988), cert.
denied, 494 U.S. 1038 (1990).... 2.2.2... 0.666. 13
People v. Webb, No. S006938 ................6 600005 16
People v. Whitt, 51 Cal.3d 620, 798 P.2d 849 (1990), cert.
denied, 111 S. Ct. 2816 (1991) ..............0.0005. 22
People v. Williams, No. S004365.................6655. 15
People v. Williams, No. S004522...................5.. 20, 21
People v. Zapien, 4 Cal.4th 929, 846 P.2d 704, cert. denied,
een vce sccctbeccénecéccesees 25
People v. Zapien, No. S004762 ................00055: 14, 16
Proctor v. California, No. 93-5161 ................5605: 10

Viii
TABLE OF AUTHORITIES

CASES

Page
Proffitt v. Florida, 428 U.S. 242 (1976) ............. 3, 11, 12
Richmond v. Lewis, 506 U.S. __, 113 S. Ct. 528 (1992) 12
Sawyer v. Whitley, 505 U.S. __., 112 S. Ct. 2514 (1992) 3

Shell v. Mississippi, 498 U.S. 1 (1990)................. 3
Shuttlesworth v. Birmingham, 382 U.S. 87 (1965) ....... 7
Smith v. Goguen, 415 U.S. 566 (1973) ........0..0005. 7

Sochor v. Flerida, 504 U.S. __., 112 S. Ct. 2114 (1992) 12
State v. David, 468 So. 2d 1126 (La. 1984), cert. denied,

RE EE SE a ee 28
State v. White, 395 A.2d 1082 (Del. 1978) ............. 28
Stringer v. Black, 503 U.S. ___. 112 S. Ct. 1130

ARE aaa peeen yey amen one ee 3, 7, 10, 18, 22, 27, 28
Tuilaepa v. California, No. 93-5131 ...............0000. 10

United States Constitution
ee ED fii cucckdnwesdaeutees 3, 11, 19, 27, 28
Statutes
Cal. Penal Code § 190.3 (Deering 1994) ............. passim
Se Pee I Is ccc ccccccccccccccccccccs passim
ey ID cn. cc ccccccccesecsccccces 28
Se EID. cc ccccdsccetcecccvccces 28
Cal. Penal Code § 190.3(i) ............ cc cece ccc eeees 19
Miss. Code Ann. § 99-19-101(d) .............000..05.. 6
Other Authorities
Model Penal Code § 210.6(b)-(g) ........ 2.0.0.0 cc cue. 23

——

Net ee

No. 93-5131
No. 93-5161

In the Supreme Court

OF THE

United States

OcToBer TERM, 1993

PAUL PALALAUA TUILAEPA (No. 93-5131),
Petitioner,

vs.
THE STATE OF CALIFORNIA,

Respondent.

WILLIAM ARNOLD Proctor (No. 93-5161),
Petitioner,

vs.
THE STATE OF CALIFORNIA,

Respondent.

On Writ of Certiorari to the United States
Court of Appeals for the Ninth Circuit

BRIEF AMICUS CURIAE OF THE
CALIFORNIA APPELLATE PROJECT
IN SUPPORT OF PETITIONERS

INTEREST OF AMICUS CURIAE

The California Appellate Project (“CAP”) is a non-profit
corporation established by the State Bar of California. It is funded
by the California Judicial Council to train and assist appointed
counsel in providing representation in state death penalty appeals
and habeas corpus proceedings. Pursuant to a grant from the
Administrative Office of the United States Courts, CAP also

2

assists the federal courts by recruiting, training and assisting
appointed counsel in federal habeas corpus proceedings on behalf
of death-sentenced prisoners in California.

As an organization that provides assistance in many of the
pending death judgment cases in California, CAP is in a unique
position to provide the Court with an analysis of the questions
presented in these consolidated cases.

CAP has received written consent of the parties to file this
amicus brief.

SUMMARY OF ARGUMENT

When a state uses aggravating factors to minimize the risk of
arbitrary imposition of the death sentence, it may not use factors
which as a practical matter fail to guide the sentencer’s discretion.
In California, the instructions given to the jury make clear beyond
any doubt that aggravating factors are a critical component of the
jury’s decision whether a defendant should live or die. Thus, these
aggravating factors must comply with the Eighth Amendment;
they must furnish the sentencer with clear standards that provide
specific guidasice as to whether death should be imposed.

In the two cases upon which certiorari has been granted, jurors
were instructed that in determining if the defendant should be put
to death, they could find and weigh as an aggravating factor “the
circumstances of the crime” and the “age of the defendant.” On
their face, neither of these aggravating factors provides the
sentencer with the type of specific and detailed guidance essential
to aggravating factors used in determining if a defendant will live
or die. Because the state supreme court has failed to provide any
limiting construction of these factors, they have been used, from
case to Case, to generate illusory aggravators and inject constitu-
tionally impermissible randomness and arbitrariness into the sen-
tencing process.

A further source of confusion in the application of California’s
capital sentencing scheme is the California statute’s failure to
designate which of the statutory sentencing factors are mitigating.
Although the state supreme court has construed seven of the
factors to be exclusively mitigating, the court has declined to

re Ne ate RO | ea Oh ty

eee ete

A) ah ee a ee

3

require trial courts to either inform the jury that these factors are
mitigating circumstances or delete these factors from the penalty
phase instructions when they are factually irrelevant. As a result,
in many California cases, juries have been invited to convert the
absence of a statutory mitigating circumstance into the presence
of an aggravating circumstance, thereby placing additional illu-
sory factors on death’s side of the scale and further distorting the
decision making process.

ARGUMENT

The Eighth Amendment principles that apply to this case are
clearly established by the Court’s decisions. When a state chooses
to impose capital punishment, the Eighth Amendment requires it
to “adopt procedural safeguards against arbitrary and capricious
impositions of the death penalty.” Sawyer v. Whitley, 505 U.S.
—_—, 112 S. Ct. 2514, 2520 (1992). Accord Gregg v. Georgia, 428
U.S. 153 (1976); Proffitt v. Florida, 428 U.S. 242 (1976). A state
capital punishment scheme must comply with the Eighth
Amendment’s “fundamental constitutional requirement for suffi-
ciently minimizing the risk of wholly arbitrary and capricious
action” in imposing the death penalty. Maynard v. Cartwright,
486 U.S. 356, 362 (1988).

Where a state elects to meet this Eighth Amendment obliga-
tion by articulating a set of aggravating and mitigating factors,
and where the aggravating factors are critical “in deciding who
shall be eligible for the death penalty or who shall receive the
death penalty, [the state] cannot use factors which as a practical
matter fail to guide the sentencer’s discretion.” Stringer v. Black,
503 U.S. —_, 112 S. Ct. 1130, 1139 (1992). Thus, as the Court
has repeatedly made clear, in states like Florida, Mississippi and
Oklahoma — where the sentencer is told that it must weigh
aggravating and mitigating factors to determine if a defendant
should live or die — the state may not rely on unconstitutionally
vague aggravating factors. See, e.g., Espinosa v. Florida, 505 U.S.
—_—, 112 S. Ct. 2926 (1992) (Florida); Shell v. Mississippi, 498
U.S. 1 (1990) (Mississippi); Maynard v. Cartwright, 486 U.S.
356 (1988) (Oklahoma).

4

THE AGGRAVATING FACTORS THAT A CALIFORNIA
JURY WEIGHS IN DETERMINING WHETHER A DE-
FENDANT SHOULD LIVE OR DIE ARE CENTRAL TO
THE PENALTY DETERMINATION.

As two Justices of this Court have recently noted, Califor-
nia — just like Florida, Mississippi and Oklahoma — “requires its
juries to weigh aggravating and mitigating circumstances” in
determining whether death is an appropriate penalty. Pensinger v.
California, __._ U.S. ___., 112 S. Ct. 351 (1991) (O’Connor, J.,
dissenting from the denial of certiorari, joined by Kennedy, J.)
See also Boyde v. California, 494 U.S. 370, 374, 377 (1990)
(observing that California juries are told to weigh aggravating and
mitigating circumstances in determining penalty); California v.
Brown, 479 U.S. 538, 540 (1987) (same); California v. Ramos,
463 U.S. 992, 995 n.3 (1983) (same).

The statute explicitly requires the jury to determine the appro-
priate punishment by weighing aggravating circumstances against
mitigating circumstances:

[The trier of fact] shall impose a sentence of death if the
trier of fact concludes that the aggravating circumstances
outweigh the mitigating circumstances. If the trier of fact
determines that the mitigating circumstances outweigh the
aggravating circumstances the trier of fact shall impose a
sentence of confinement in a state prison for life without the
possibility of parole.

Cal. Pen. Code § 190.3.

The California Supreme Court has itself long recognized that
the role of aggravating and mitigating factors in the penalty
determination process is identical to the role those factors play in
Florida, a state statute with which this Court has much experi-
ence. As early as 1979, in interpreting a predecessor statute to the
current law which provided that the jury was to be guided by a list
of aggravating and mitigating factors almost identical to that
present in the current statute, the state court concluded that the
factors set forth in section 190.3 are “essentially equivalent to the
provision in the valid Florida statute requiring the sentencing

April ae Stee oe St

ce a Ee ee Se a ee ee ee

awn ae

5

authority to ‘weigh’ [ aggravating and mitigating] factors in reach-
ing its decision.” People v. Frierson, 25 Cal.3d 142, 180, 599 P.2d
587, 610 (1979).' The “California statute lists specific factors
which must be considered in deciding whether or not to impose
the death penalty.” Jd. at 177, 599 P.2d at 608. The state court
explicitly concluded that use of the aggravating and mitigating
factors under the California scheme was “almost identical” to the
use of such factors in Florida. Jd.

The state court has taken a similar view in interpreting the
current statute, which requires that the jury not merely be
“guided by” the aggravating and mitigating factors but “shall
impose” death if aggravating factors outweigh mitigating factors.
Reaffirming the central role played by the aggravating and miti-
gating factors, the court has noted that section 190.3 “require[s]
the jury to decide the appropriateness of the death penalty by a
process of weighing the specific factors listed in the statute.”
People v. Boyd, 38 Cal.3d 762, 773, 700 P.2d 782, 790 (1985).
Indeed, as Boyd held, under the current statute, unlike the 1977
statute, the list of factors is exclusive, thus making the role of the
Statutory aggravating factors all the more important. /d. at
772-73, 700 P.2d at 789-90.

In a series of more recent cases, the court has continued to
emphasize the critical role played by aggravating factors in the
determination of penalty, noting that “the crux of the jury’s
decision is the weighing of aggravating and mitigating factors
.... People v. Kaurish, 52 Cal.3d 648, 706, 802 P.2d 278, 309
(1990), cert. denied, 112 S. Ct. 121 (1991). Accord People v.
Brown, 40 Cal.3d 512, 544, 709 P.2d 440, 458 (1985), rev'd. on
other grounds, 479 U.S. 538 (1987) (“[Section 190.3] simply

' The predecessor statute was former California Penal Code section
190.3, a provision of California’s 1977 death penalty legislation in effect
from August 11, 1977 (Cal. Stats. 1977, ch. 316) until November 8,
1978, when it was superseded by the current statute, enacted by
Initiative Measure, approved November 7, 1978. The factors listed
under former section 190.3 were essentially identical to the factors listed
under the current statute, with one exception, i.e., former section 190.3
did not include what is now factor (c) covering prior felony convictions.

6

makes clear that, in resolving the ultimate issue of punishment
...the jurors are to limit their consideration to ‘the specific
factors listed in the statute.’ ”’)?

Amicus recognizes that in a case decided after this Court
granted certiorari in Proctor and Tuilaepa, the state court has
departed from its historic view as to the role of aggravating factors
under the California statute. The state court has now held that
because the factors in section 190.3 are “only” used to determine
whether a defendant should live or die, and do not determine
whether the defendant is “death eligible,” the full dictates of the
Eighth Amendment do not apply to those factors. People v.
Bacigalupo, 6 Cal.4th 457, 475, 862 P.2d 808, (1993), on remand
from Bacigalupo v. California, 506 U.S. __, 113 S. Ct. 32
(1992).

In reaching this conclusion, the state court also articulated a
very new, and much more limited, role for the factors set forth in
section 190.3, a role that it concluded exempts these factors from
the Eighth Amendment scrutiny applied to aggravating factors in
every other state. According to the state court’s current view, the
factors set forth in section 190.3 are no longer “essentially
equivalent” to the aggravating factors in Florida. Instead, “the
section 190.3 ‘aggravating’ factors in California’s capital sentenc-
ing scheme do no more than direct attention” to “facts about the
offense and the offender that will weigh in the sentencing decision
in favor of the more severe penalty of death.” People v. Baci-
galupo, 6 Cal.4th at 477, 862 P.2d at ___ On this basis, the

*In Brown, the state court also held that the weighing process
mandated by state law was not to be a mere counting of aggravating and
mitigating factors. Instead, the jury was to weigh aggravating and
mitigating factors and decide if death was the appropriate punishment.
40 Cal.3d at 543-44, 709 P.2d at 455-56. In reaching this interpretation,
the state court once again explicitly reaffirmed that it was construing the
California statute to be just like Florida’s. Jd. at 543, 709 P.2d at 456-57.
See Barclay v. Florida, 463 U.S. 939, 963-64 (1983) (concurring
opinion of Stevens, J., describing Florida scheme). Indeed, the same is
true in Mississippi; although the jury is told to weigh aggravating and
mitigating circumstances, its ultimate responsibility is to determine if
death is the appropriate punishment. Miss. Code Ann. § 99-19-101 (d).

7

court concluded that the state was free to use factors which as a
practical matter fail to guide the sentencer’s discretion. /d.

Of course, as a matter of federal law, the state court’s view that
aggravating factors used only to determine whether a defendant
should live or die are exempt from full constitutional scrutiny is
simply wrong. Justice Kennedy’s opinion for the Court in Stringer
v. Black could not have been more clear as to this point, squarely
holding that “if a State uses aggravating factors in deciding who
shall be eligible for the death penalty or who shall receive the
death penalty, [the State] cannot use factors which as a practical
matter fail to guide the sentencer’s discretion.” 503 U.S. at __,
112 S. Ct. at 1139.

Conceivably, if a jury were instructed in accord with the state
court’s current view of the limited role of section 190.3 factors,
the state might be free at the penalty phase to call the jury’s
attention to facts which do not in any way objectively guide the
sentencer’s discretion.’ However, in the two cases now before this
Court — and others presented to sentencing juries prior to the
state court’s recent Bacigalupo decision — the instructions and
argument given simply do not reflect the state court’s current
limited view of the section 190.3 factors. See Shuttlesworth v.
Birmingham, 382 U.S. 87, 91-92 (1965) (in addressing a vague-
ness challenge to a state statute, courts must look at judicial
interpretations of the statute at the time it was applied to
defendant). Accord Smith v. Goguen, 415 U.S. 566, 570-72
(1974); Lanzetta v. New Jersey, 306 U.S. 451, 456-57 (1939). To
the contrary, these instructions are consistent with the state
court’s then current approach to section 190.3 which “require[d]

> If this were the case, however, the full burden of insuring that the
jury receives constitutionally adequate guidance would necessarily fall
upon the “special circumstance” findings made at the guilt phase. Given
that California has the broadest array of special circumstance findings
used to make a defendant death eligible in the entire country, intended
by the drafters of the statute in their own words to “apply to every
murderer,” it is not at all clear that California would be left with a
constitutional statute under this construction. 1978 California Voter's
Pamphlet, p. 34, Argument in Support of Proposition 7. This question is
not before the Court in these cases, however.

[the] jur[y] to weigh [the] aggravating and mitigating circum-
stances” in determining whether death was an appropriate pen-
alty. Pensinger v. California, US. at _, 112 S. Ct. at
351.

In fact, consistent with the state court’s longstanding approach
to section 190.3, an examination of California capital cases shows
beyond any doubt that prosecutors throughout the state have long
been advising juries that the process they are required to engage
in before imposing a death sentence is a weighing of the statutory
aggravating and mitigating factors. The following are representa-
tive arguments from prosecutors in California death penalty trials:

* “You might list all of the mitigating factors on one side of
the scale, list all of the aggravating factors on the other
side of the scale, and make a finding of fact and answer
this question: Did the aggravating factors outweigh the
mitigating factors? ...If you conclude that the aggravat-
ing circumstances outweigh the mitigating circumstances,
you shall impose a sentence of death.” People v. Hen-
dricks, 44 Cal.3d 635, 658, 749 P.2d 836, 849, cert. denied,
488 U.S. 900 (1988).

* “If you decide that the aggravating circumstances out-
weigh the mitigating circumstances, then you must return
a verdict of death.” People v. McLain, 46 Cal.3d 97, 117,
757 P.2d 569, 580 (1988), cert. denied, 489 U.S. 1072
(1989).

* “If you find that aggravating factors outweigh, and it can
be a slight outweigh, it will be your obligation to return a
verdict of death.” People v. Boyde, 46 Cal.3d 212, 262-63,
758 P.2d 25, 55 (1988), aff'd, 494 U.S. 370 (1990).

* “The law . . . boils down to a simple solution of balancing.
You have to balance in this case a set of aggravating
factors versus a set of mitigating factors. And if you find
that one of the factors outweighs the other, then it’s simply
your duty as jurors to make a decision in favor of those
factors which outweigh the other.” People v. Bean, 46
Cal.3d 919, 956, 760 P.2d 996, 1019 (1988), cert. denied,
494 U.S. 1038 (1990).

9

¢ “[I}f you conclude that the aggravating circumstances
outweigh the mitigating circumstances, you shall impose
the sentence of death.” People v. Hamilton, 48 Cal.3d
1142, 1181, 774 P.2d 730, 754 (1989), cert. denied, 494
U.S. 1039 (1990).

¢ If aggravating factors outweigh mitigating factors “[y]ou
do not have [any] discretion....[I]}t is your duty to
return a verdict of death.” People v. Kaurish, 52 Cal.3d
648, 713-14, 802 P.2d 278, 314 (1990), cert. denied, 112
S. Ct. 121 (1991).

* “So if you conclude that the aggravating circumstances
outweigh the mitigating circumstances, you are obligated
to return a verdict of death.” People v. Proctor, 4 Cal.4th
499, 547, 842 P.2d 1100, 1128 (1992), cert. granted, 114
S. Ct. 598 (1993).

These statements illustrate that in practice, as well as under the
state court’s longstanding construction of the state statute, the
aggravating ani mitigating factors set forth in section 190.3 are
central to the penalty determination. Indeed, in accord with the
statute, prosecutors arguing for a death sentence have often
prepared and presented charts containing a list of the aggravating
and mitigating factors in a particular case and taken pains to urge
the jury to find each and every aggravating factor on the list.‘ This
approach is a natural response to a scheme which requires the

* See, e.g., People v. Montiel, 5 Cal.4th 877, 939 n.36, 855 P.2d 1277,
1313 n.36 (1993); People v. Clark, 3 Cal.4th 41, 165 0.24, 833 P.2d 561,
632 n.24 (1992), cert. denied, 113 S. Ct. 1604 (1993); People v. Hardy,
2 Cal4th 86, 202, 825 P.2d 781, 852, cert. denied, 113 S. Ct. 498
(1992); People v. Gonzalez, 51 Cal.3d 1179, 1228-29, 1230 n.28, 800
P.2d 1159, 1184-85 n.28 (1990), cert. denied, 112 S. Ct. 117 (1991);
People v. Douglas, 50 Ca).3d 468, 537, 788 P.2d 640, 681 (1990), cert.
denied, 498 U.S. 1110 (1991); People v. Hamilton, 48 Cal.3d 1142,
1183-86, 774 P.2d 730, 755-57 (1989), cert. denied, 494 U.S. 1039
(1990); Jd. at 1188 and 1192 (Broussard, J., dissenting in part); People
v. Guzman, 45 Cal.3d 915, 971-72, 755 P.2d 917, 952-53 (1988), cert.
denied, 488 U.S. 1050 (1989) (Mosk, J., dissenting in part); People v.
Ghent, 43 Cal.3d 739, 782, 739 P.2d 1250, 1278 (1987), cert. denied,
485 U.S. 929 (1988) (Broussard, J., concurring).

;

10

jury to weigh aggravating and mitigating factors. Obviously,
before a jury can weigh such factors, it must necessarily make a
finding as to which aggravating factors actually go into the
weighing process. It is inconceivable that a jury charged with the
solemn task of weighing aggravating and mitigating factors to
determine whether a defendant will live or die would engage in
that task without deciding which aggravating factors have been
established. Indeed, it is impossible to engage in the mandated
weighing process without making findings ing the existence
or non-existence of particular aggravating factors.

It is clear, therefore, that aggravating factors under the Califor-
nia scheme are a critical facet of ihe jury's decision whether to
sentence a defendant to death. Their function in the sentencing
process subjects them to the constitutional rule that where a state
chooses to make “aggravating factors... central in the weighing
phase of a capital sentencing proceeding... use of a vague or
imprecise aggravating factor in the weighing process invalidates
the sentence and at the very least requires constitutional harmless
error analysis or appellate reweighing in the state judicial sys-
tem.” Stringer v. Black, 503 U.S. at ___., 112 S. Ct. at 1140.°

*In Proctor v. California, No. 93-5161, the jury was instructed that
“before you may consider a particular aggravating circumstance to be
true, you must be satisfied of the existence of that aggravating circum-
stance beyond a reasonable doubt.” (RT 1558.)

*In Proctor and Tuilaepa the instructions, closing arguments and
verdict forms made quite clear that the aggravating factors were critical
to the jury’s ultimate determination of penalty. Proctor v. California,
No. 93-5161, RT 1474, 1558, 1562; CT 479 (instructions, argument and
verdict forms all told the jury that if aggravating factors outweighed
mitigating factors, it was required to impose a death sentence): Tuilaepa
v. California, No. 93-5131, (RT 839, 864, 870, 885-87; CT 225-26)
(instructions, argument and verdict forms all told the jury that the
weighing process was central to the sentencing determination, and that
death could be imposed only if the aggravating circumstances substan-
tally outweighed the mitigating circumstances).

ll

WHERE A SENTENCING JURY IS INSTRUCTED TO
WEIGH AGGRAVATING AND MITIGATING CIRCUM-
STANCES IN DETERMINING WHETHER THE DEFEN-
DANT SHOULD LIVE OR DIE, INSTRUCTING THE
JURY TO WEIGH AS AN AGGRAVATING CIRCUM-
STANCE THE “CIRCUMSTANCES OF THE CRIME”
OR THE “AGE” OF THE DEFENDANT VIOLATES THE
EIGHTH AMENDMENT.

A. An Aggravating Factor Is Unconstitutionally Vague
Where Its Own Terms Furnish No Discernible Standards
For The Sentencer And The State Courts Have Failed To

Provide A Limiting Construction.

This Court has repeatedly held that when a state chooses to
rely upon the presence of aggravating factors to satisfy the
“fundamental constitutional requirement [of] sufficiently mini-
mizing the risk of wholly arbitrary and capricious action,” those
factors must furnish the sentencer with “clear and objective
standards” that provide “specific and detailed guidance.” Lewis v.
Jeffers, 497 U.S. 764, 774 (1990); Godfrey v. Georgia, 446 U.S.
420, 428 (1980); Gregg v. Georgia, 428 U.S. 153, 198 (1976);
Proffitt v. Florida, 428 U.S. 242, 253 (1976). An aggravating
factor is unconstitutionally vague “if its description is so vague as
to leave the sentencer without sufficient guidance for determining
the presence or absence of the factor.” Espinosa v. Florida, 505
U.S. at _., 112 S. Ct. at 2928.

The first step in deciding whether a particular aggravating
factor is unconstitutionally vague is to “determine whether the
statutory language defining the circumstance is itself too vague to
provide any guidance to the sentencer.” Arave v. Creech, 507 U.S.
___., 113 S. Ct. 1534, 1541 (1993). If the language is indeed
vague, the next step is to determine whether the “state courts
have further defined the vague terms” with a constitutionally
sufficient limiting construction. Jd.

To determine whether an aggravating circumstance is unclear
—or whether a proper limiting construction has been utilized—
requires an inquiry into state court applications of the aggravating

12

factor. See, e.g. Sochor v. Florida, 504 U.S. ——, 112 S. Ct.
2114, 2121-22 (1992); Proffitt v. Florida, 428 U.S. at 255, n.12
(joint opinion of Stewart, Powell and Stevens, JJ.). Accord Arave
v. Creech, 507 U.S. at __., 113 S. Ct. at 1544. Where those
applications reveal that the state courts have never articulated a
limiting construction which provides “specific and detailed gui-
dance,” the aggravating factor is constitutionally infirm. Maynard
v. Cartwright, 486 U.S. at 360-64; Godfrey v. Georgia, 446 U.S. at
428-33. See also Clemons v. Mississippi, 494 U.S. 738, 756
(1990) (Blackmun, J. concurring).

B. Instructing The Jury In The Bare Terms Of Penal Code
Section 190.3(a) To Weigh The “Circumstances Of The
Crime” Aggravating Factor In Deciding Whether A De-
fendant Should Live Or Die, Without Any Limiting Con-
struction, Is Unconstitutional.

California Penal Code section 190.3(a) authorizes the sentenc-
ing jury to weigh the “circumstances of the crime” as an aggra-
vating factor. There can be no serious dispute that this statutory
language “fails to furnish principled guidance for the choice
between death and a lesser penalty.” Richmond v. Lewis, 506
U.S. —, 113 S. Ct. 528, 534 (1992).

In fact, the Court has long held that a sentencer may not
simply look at the circumstances surrounding a crime and deter-
mine that a death penalty is appropriate. See, e.g., Maynard v.
Cartwright, 486 U.S. at 363; Godfrey v. Georgia, 446 U.S. at
429-33; Furman v. Georgia, 408 U.S. 238, 239-40, 255-57,
309-10, 314 (1972). As the Court concluded unanimously in
Maynard, “{wje have plainly rejected the submission that a
particular set of facts surrounding a murder, however shocking
they might be, were enough in themselves, and without some
narrowing principle to apply to those facts. to warrant the imposi-
tion of the death penalty.” 486 U.S. at 363. Accord Cartwright v.
Maynard, 822 F.2d 1477, 1491 (10th Cir. 1987), aff'd, 486 U.S.
356 (1988) (“the discretion of a sentencer who can rely upon all
the circumstances of a murder is as complete and as unbridled as
the discretion afforded the jury in Furman”).

13

Thus, on its face the aggravating factor set forth in section

190.3(a) violates the Eighth Amendment's requirement that

aggravating factors central to the penalty determination furnish
the sentencer with “clear and objective standards” that provide
“specific and detailed guidance.” The question then becomes
whether the state courts have articulated and applied a limiting
construction to this factor.

Certainly the state supreme court has never articulated a
limiting construction of the “circumstances of the crime” aggra-
vating factor. That court has seen no need to do so because it has
consistently held that the language of the statute is neither
‘illusory’ nor otherwise impermissibly ‘vague’.” People v. Tui-
laepa, 4 Cal.4th at 595, 842 P.2d at 1158. Accord People v.
Proctor, 4 Cal.4th at 551, 842 P.2d at 1130, People v. Noguera,
4 Cal.4th 599, 648-49, 842 P.2d 1160, 1189-90 (1992); People v.
Sims, 5 Cal.4th 405, 465-66, 853 P.2d 992, 1030 (1993). Indeed,
in admitting that it had not yet “explored the outer reaches” of
facts which would comprise the “circumstances of the crime”
aggravating factor, the state court has actually expanded the
definition of this factor, noting that it “does not mean merely the
immediate temporal and spatial circumstances of the crime.”
People v. Edwards, 54 Cal.3d 787, 833, 835, 819 P.2d 436, 467
(1991), cert. denied, 113 S. Ct. 642 (1992) (emphasis added).

Having at all times found that the broad term “circumstances
of the crime” met constitutional scrutiny, the state supreme court
has never applied a limiting construction to this factor. Instead,
the state court has remained true to the extraordinary expansion
of this factor announced in Edwards, approving reliance on the
“circumstance of the crime” aggravating factor because defen-
dant had a “hatred of religion,” or because three weeks after the
crime defendant sought to conceal evidence,’ or threatened wit-

” People v. Nicolaus, 54 Cal.3d 551, 581-82, 817 P.2d 893, 908-09
(1991), cert. denied, 112 S. Ct. 3040 (1992).

* People v. Walker, 47 Cal.3d 605, 639 n.10, 765 P.2d 70, 90 0.10
(1988), cert. denied, 494 U.S. 1038 (1990).

14

nesses after his arrest,” or disposed of the victim's body in a
manner that precluded its recovery.'®

Nor has the state supreme court's refusal to articulate a
limiting construction for factor (a) gone unnoticed by the state's
prosecutors. To the contrary, prosecutors throughout the state
have capitalized on the extraordinary breadth of factor (a) to
argue that the jury could weigh in aggravation almost every
conceivable circumstance of the crime, even those that, from case
to case, reflect starkly opposite circumstances. Thus, prosecutors
have been permitted to argue that “circumstances of the crime”’ is
an aggravating factor to be weighed on death's side of the scale:

* Because the defendant struck many blows and inflicted
multiple wounds,'' or because the defendant killed with a
single execution-style wound."

¢ Because the defendant killed the victim for some purport-
edly aggravating motive (money, revenge, witness-elimi-

* People v. Hardy, 2 Cal.4th 86, 204, 825 P.2d 781, 853, cert. denied.
113 S. Ct. 498 (1992).

'° People v. Bittaker, 48 Cal.3d 1046, 1110 n.35, 774 P.2d 659, 697
n.35 (1989), cert. denied, 496 U.S. 931 (1990).

'" See, e.g., People v. Morales, Cal. Sup. Ct. No. [hereinafter “No.” }
$004552, RT 3094-95 (defendant inflicted many blows); People v.
Zapien, No. S004762, RT 36-38 (same); People v. Lucas, No. S004788,
RT 2997-98 (same); People v. Carrera, No. S004569, RT 160-61
(same).

"? See, e.g. People v. Freeman, No. S004787, RT 3674, 3709 (defen-
dant killed with single wound); People v. Frierson, No. $004761, RT
3026-27 (same).

15

nation, avoiding arrest, sexual gratification)'’ or because
the defendant killed the victim without any motive at all.'*

+ Because the defendant killed the victim in cold blood'* or
because the defendant killed the victim during a savage
frenzy.'*

* Because the defendant engaged in a cover up to conceal

his crime,'” or because the defendant did not engage in a
cover up and so must have been proud of it."

"? See, eg., People v. Howard, No. 9004452, RT 6772 (money);
People v. Allison, No. S004649, RT 968-69 (same); People v
Belmontes, No. S004467, RT 2466 (eliminate a witness); People v
Coddington, No. S008840, RT 6759-60 (sexual gratification); People v
Ghent, No. $004309, RT 2553-55 (same); People v. Brown, No.
$004451, RT 3543-44 (avoid arrest); People v McLain, No. $004370,
RT 31 (revenge).

* See, e.g., People v. Edwards, No. S004755, RT 10544 (defendant
killed for no reason); People v. Osband, No. S005233, RT 3650 (same);
People v. Hawkins, No. $014199, RT 6801 (same).

'* See, e.g., People v. Visciotti, No. S004597, RT 3296-97 (defendant
killed in cold blood).

'* See, ¢.g., People v. Jennings, No. S004754, RT 6755 (defendant
killed victim in savage frenzy [trial court finding}).

"” See, e.g., People v. Stewart, No. S020803, RT 1741-42 (defendant
attempted to influence witnesses); People v. Benson, No. S004763, RT

1141 (defendant lied to police); People v. Miranda, No. S004464, RT
4192 (defendant did not seek aid for victim).

"* See, e.g. People v. Adcox, No. $004558, RT 44607 (defendant freely
informs others about crime); People v. Williams, No. $004365, RT
3030-31 (same); Peopie v. Morales, No. S004552, RT 3093 (defendant
failed to engage im a cover-up).

16

¢ Because the defendant made the victim endure the terror
of anticipating a violent death'’ or because the defendant
killed instantly without any warning.”

* Because the victim had children,”’ or because the victim
had not yet had a chance to have children.”

+ Because the victim struggled prior to death,” or because
the victim did not struggle.”

* Because the defendant had a prior relationship with the
victim,” or because the victim was a complete stranger to
the defendant.”

These examples show that absent any limitation on the “cir-
cumstances of the crime” aggravating factor, different prosecutors
have urged juries to find this aggravating factor and place it on
death’s side of the scale based on squarely conflicting
circumstances.

'? See, e.g., People v. Webb, No. S006938, RT 5302; People v. Davis,
No. S014636, RT 11125; People v. Hamilton, No. S004363, RT 4623.

* See, e.g., People v. Freeman, No. S004787, RT 3674 (defendant
killed victim instantly); People v. Livaditis, No. S004767, RT 2959
(same).

*! See, e.g, People v. Zapien, No. S004762, RT 37 (Jan. 23, 1987)
(victim had children).

” See, e.g., People v. Carpenter, No. 004654, RT 16752 (victim had
not yet had children).

? See, e.g., People v. Dunkle, No. S014200, RT 3812 (victim strug-
gied); People v. Webb, No. S006938, RT 5302 (same); People v. Lucas,
No. $004788, RT 2998 (same).

* See, e.g., People v. Fauber, No. S005868, RT 5546-47 (no evidence
of a struggle); People v. Carrera, No. S004569, RT 160 (same).

*® See, e.g., People v. Padilla, No. S014496, RT 4604 (prior relation-
ship); People v. Waidla, No. S020161, RT 3066-67 (same); People v.
Kaurish, 52 Cal.3d at 717, 802 P.2d at 316 (same).

*® See, e.g., People v. Anderson, No. 004385, RT 3168-69 (no prior
relationship); People v. McPeters, No. S004712, RT 4264 (same).

17

Of equal importance, prosecutors have been permitted to use
the “circumstances of the crime” aggravating factor to embrace
facts which cover the entire spectrum of facets inevitably present
in every homicide:

* The age of the victim. Prosecutors have argued, and
juries were free to find, that factor (a) was an aggravating
circumstance because the victim was a child, an adoles-
cent, a young adult, in the prime of life, or elderly;”’

* The method of killing. Prosecutors have argued, and
juries were free to find, that factor (a) was an aggravating
circumstance because the victim was strangled, bludg-
coned, shot, stabbed or consumed by fire.”

* The motive of the killing. Prosecutors have argued, and
juries were free to find, that factor (a) was an aggravating
circumstance because the defendant killed for money, to
eliminate a witness, for sexual gratification, to avoid arrest,
for revenge, or for no motive at all.””

”” See, e.g., People v. Deere, No. S004722, RT 155-56 (victims were
young, ages 2 and 6); People v. Bonin, No. S004565, RT 10075 (victims
were adolescents, ages 14, 15 and 17); People v. Kipp, No. S009169, RT
5164 (victim was a young adult, age 18); People v. Carpenter, No.
$004654, RT 16752 (victim was 20); People v. Phillips, 41 Cal.3d 29,
63, 711 P.2d 423, 444 (1985) (26-year-old victirn was “in the prime of
his life”); People v. Samayoa, No. 006284, XL RT 49 (victim was an
adult “in her prime”); People v. Kimble, No. S004364, RT 3345 (61-
year-old victim was “finally in a position to enjoy the fruits of his life’s
efforts”); People v. Melton, No. S004518, RT 4376 (victim was 77);
People v. Bean, No. 004387, RT 4715-16 (victim was “elderly”).

® See, e.g, People v. Clair, No. 004789, RT 2474-75 (strangula-
tion); People v. Kipp, No. S004784, RT 2246 (same); People v. Fauber,
No. S005868, RT 5546 (use of an ax); People v. Benson, No. S004763,
RT 1149 (use of a hammer); People v. Cain, No. S006544, RT 6786-87
(use of a club); People v. Jackson, No. S010723, RT 8075-76 (use of a
gun); People v. Reilly, No. S004607, RT 14040 (stabbing); People v.
Scott, No. $010334, RT 847 (fire).

* See, e.g., People v. Howard, No. S004452, RT 6772 (money);
People v. Allison, No. S$004649, RT 969-70 (same); People v.

18

* The time of the killing. Prosecutors have argued, and
juries were free to find, that factor (a) was an aggravating
circumstance because the victim was killed in the middle
of the night, late at night, early in the morning or in the
middle of the day.”°

* The location of the killing. Prosecutors have argued, and
juries were free to find, that factor (a) was an aggravating
circumstance because the victim was killed in her own
home, in a public bar, in a city park or in a remote
location.”"

The foregoing examples of how the factor (a) aggravating
circumstance is actually being applied in practice make clear
beyond peradventure that it is being relied upon as an aggravating
factor in every case, by every prosecutor, without any limitation
whatever. As a consequence, from case to case, prosecutors have
been permitted to turn entirely opposite facts—or facts that are
inevitable variations of every homicide—into an aggravating fac-
tor which the jury is urged to weigh on death’s side of the scale.
This is the precise type of arbitrariness which, as Stringer warns,
is created by vague aggravating factors weighed in the sentencing
process.

Belmontes, No. S004467, RT 2466 (eliminate a witness); People v.
Coddington, No. S008840, RT 6759-61 (sexual gratification); People v.
Ghent, No. S004309, RT 2553-55 (same); People v. Brown, No.
$004451, RT 3544 (avoid arrest); People v. McLain, No. $004370, RT
31 (revenge); People v. Edwards, No. S004755, RT 10544 (no motive at
all).

® See, e.g., People v. Fauber, No. S005868, RT 5777 (early morning);
People v. Bean, No. 004387, RT 4715 (middle of the night); People v.
Avena, No. S004422, RT 2603-04 (late at night); People v. Lucero, No.
S012568, RT 4125-26 (middle of the day).

*' See, e.g., People v. Anderson, No. S004385, RT 3167-68 (victim's
home); People v. Cain, No. S006544, RT 6787 (same); People v.
Freeman, No. S004787, RT 3674, 3710-11 (public bar); People v.
Ashmus, No. S004723, RT 7340-41 (city park); People v. Carpenter,
No. $004654, RT 16749-50 (forested area); People v. Comtois, No.
S017116, RT 2970 (remote, isolated location).

19

In practice, section 190.3‘s broad “circumstances of the crime”
aggravating factor allows precisely what Maynard sought to pre-
clude. It licenses indiscriminate imposition of the death penalty
upon no basis other than “that a particular set of facts surround-
ing a murder, . . . were enough in themselves, and without some
narrowing principles to apply to those facts, to warrant the
imposition of the death penalty.” Maynard v. Cartwright, 486
U.S. at 363. Thus, instructing the jury in the bare terms of section
190.3 violates the Eighth Amendment.

C. Allowing The Jury To Weigh The Aggravating Factor Of
The Defendant’s Age, As It Has Been Broadly Construed
By The State Supreme Court, Violates The Eighth
Amendment.

California Penal Code section 190.3(i) directs the jury to
consider the “age of the defendant at the time of the crime.” On
its face, this statute gives the jury no guidance as to what age
might constitute an aggravating factor, or what standards should
be used in making this decision. Thus, on its face, this factor
violates the Eighth Amendment’s requirement that aggravating
factors provide the sentencer with clear, specific guidance.

The state supreme court has not only failed to articulate a
limiting construction of the age factor that would cure its vague-
ness, but it has articulated a definition of “age” that makes it as
vague and standardless as it possibly could be. The California
Supreme Court has not limited this factor to simple chronological
age. Rather, it has interpreted this factor to be “a metonym for
any age-related matter suggested by the evidence or by common
experience or morality that might reasonably inform the choice of
penalty.” People v. Lucky, 45 Cal.3d 259, 302, 753 P.2d 1052,
1080 (1988), cert. denied, 488 U.S. 1034 (1989) (emphasis
added) .”

* The state court has in fact held that factor (i) does not permit
aggravation on the basis of “mere chronological age,” People v. Lucky,
45 Cal.3d at 302, 753 P.2d at 1080; People v. Rodriguez, 42 Cal.3d 730,
789, 726 P.2d 113, 151 (1986), but it has never required that either this
limitation on factor (i) or the court’s expansive metonym construction
of the factor be conveyed to California sentencing juries.

20

Once again, the state supreme court’s unwillingness to articu-
late a limiting construction for this factor has not gone unnoticed
by the state’s prosecutors. Prosecutors throughout the state have
capitalized on this failure, applying it exactly the way one would
expect based on the state court’s interpretation — inconsistently
and arbitrarily. Thus, although a defendant cannot be subjected to
the death penalty in California unless he was at least 18 years old
at the time of the crime, in some cases prosecutors have argued
that the age factor was aggravating where the defendant was in his
late teens or early twenties at the time of the crime, while in other
cases they have conceded that the defendant’s youth was a
mitigating factor. Prosecutors have argued that:

+ Age 18 is an aggravating factor.”
+ Age 19 is an aggravating factor.”
+ Age 20 is a mitigating factor.”®

®? See, e.g., People v. Noguera, No. S005170, RT 8640-41; People v.
Kimble, No. S004364, RT 3348-51. But see People v. Leach, 41 Cal.3d
92, 111, 710 P.2d 893, 904 (1985) (California Supreme Court treats age
18 as a mitigating factor); People v. Bell, No. S004260, RT 1023
(prosecutor asserts that had defendant been 18 years old at the time of
the crime it would be appropriate to treat age as a mitigating factor);
People v. Babbitt, S22692, RT 5105 (same); People v. Anderson, No.
$004385, RT 3156-57 (same); People v. Kaurish, No. S004640, RT
4562 (same); People v. DeSantis, No. S004706, RT 19840 (same);
People v. Fairbank, No. S012032, RT 3610 (same); People v. Ghent,
No. $004309, RT 2566 (same); People v. Pinholster, No. S004616, RT
7440 (same); People v. Jennings, 46 Cal.3d 963, 989, 760 P.2d 475, 491
(1988), cert. denied, 489 U.S. 1091 (1989) (same).

™ See, e.g., People v. Williams, No. S004522, RT 1041; People v.
Avena, No. $004422, RT 2611-12; People v. Boyette, No. S032736, RT
2007, 2014.

*® See, e.g., People v. Babbitt, No. S22692, RT 5105; People v.
Carrera, No. $004569, RT 173. But see People v. Bean, 46 Cal.3d at 952
n.18, 760 P.2d at 1017 n.18, No. S004387, RT 4718-19 (age 20 is

aggravating).

21

* Age 21 is an aggravating factor.”
* Age 22 is an aggravating factor.”
« Age 24 is a mitigating factor.”

Even in the same case, the prosecutor and the trial judge have
come to opposite conclusions about whether to treat the defen-
dant’s age as an aggravating factor, a mitigating factor, or neither:

* District attorney argued that age 19 was aggravating, but
trial judge concluded that it was mitigating

* District attorney argued that age 19 was aggravating, but
trial judge concluded that it was neutral.”

¢ District attorney argued that 21 could be either mitigating

or aggravating, but trial judge concluded it was not
mitigating.*'

In practice, prosecutors and trial judges have applied the

aggravating factor of age to defendants of virtually every age.

They have applied it to defendants who were in their teens,”

* See, e.g., People v. Rundle, No. S012943, RT 9450.

” See, e.g, People v. Mitcham, | Cal.4th 1027, 1076, 824 P.2d 1277,
1310, cert. denied, 113 S. Ct. 349 (1992), No. $004636, RT 1908.

* See, e.g. People v. Raley, No. 005870, RT 9293.

* People v. Williams, No. $004522, RT 1041, 1155.

” People v. Avena, No. $004422, RT 2611-12, 2750-51.
|

“' People v. £erryman, No. S008182, RT 3992, Pronouncement of
Judgment at 12.
“ See, eg. People v. Williams, No. S004522, RT 1041; People v.

Avena, No. S004422, RT 2611-12; People v. Boyette, No. S032736, RT
2007, 2014.

§
}
:

22

twenties,”’ thirties,“ forties,“ and fifties at the time of the
crime. These examples demonstrate that, like the “circumstances
of the crime,” the “age of the defendant,” in practice, is exactly
the type of vague, illusory aggravating factor that, as Stringer
warned, injects arbitrariness into the sentencing process.

BECAUSE THE CALIFORNIA SUPREME COURT HAS
NOT REQUIRED THAT JURIES BE INSTRUCTED AS
TO WHICH OF THE FACTORS CONTAINED IN PENAL
CODE SECTION 190.3 ARE EXCLUSIVELY MITIGAT-
ING, THE ABSENCE OF STATUTORY MITIGATING
FACTORS HAS BEEN USED TO CREATE ILLUSORY
AGGRAVATING FACTORS.

Penal Code section 190.3 contains a single list of factors and
does not designate which factors are aggravating and which are
mitigating. The California Supreme Court, however, has made
clear that some of the listed factors are intended to be exclusively

” See, e.g. People v. Bean, 46 Cal.3d at 952, n.18, 760 P.2d at 1017
n.18, No. S004387, RT 4718-19 (age 20); People v. Coleman, 48 Cal.3d
112, 153-54, 768 P.2d 32, 55-56 (1989), cert. denied, 494 U.S. 1038
(1990) (age 22); People v. Sandoval, 4 Cal.4th 155, 189-90, 841 P.2d
862, 880 (1992), cert. granted, in part, 114 S. Ct. 40 (1993) (age 26).

“ See, e.g., People v. Gonzalez, 51 Cal.3d 1179, 1233, 800 P.2d 1159,
1187 (1990), cert. denied, 112 S. Ct. 117 (1991) (age 31); People v.
Whitt, 51 Cal.3d 620, 654, 798 P.2d 849, 869 (1990), cert. denied, 111
S. Ct. 2816 (1991) (age 30); People v. Brown, 46 Cal.3d 432, 455-56,
758 P.2d 1135, 1151 (1988), cert. denied, 489 U.S. 1059 (1989) (age
34); People v. Edwards, 54 Cal.3d 787, 844, 819 P.2d 436, 470 (1991),
cert. denied, 113 S. Ct. 642 (1992) (age 37).

“** See, e.g. People v. McLain, 46 Cal.3d 97, 111-12, 757 P.2d 569,
576-77 (1988), cert. denied, 489 U.S. 1072 (1989) (age 41).

“ See, e.g., People v. Douglas, 50 Cal.3d 468, 538, 788 P.2d 640
(1990), cert. denied, 498 U.S. 1110 (1991). See also People v. Nicolaus,
54 Cal.3d 551, 587, 817 P.2d 893, 913 (1991), cert. denied, 112 S. Ct.
3040 (1992).

23

mitigating. People v. Davenport, 41 Cal.3d 247, 288-89, 710 P.2d
861, 888 (1985); People v. Melton, 44 Cal.3d 713, 770, 750 P.2d
741, 775, cert. denied, 488 U.S. 934 (1988); People v. Lucero, 44
Cal.3d 1006, 1031 n.15, 750 P.2d 1342, 1356-57 n.15 (1988);
People v. Hamilton, 48 Cal.3d 1142, 1184, 774 P.2d 730, 755
(1989), cert. denied, 494 U.S. 1039 (1990). These factors are:

(d) Whether or not the offense was committed while the
defendant was under the influence of extreme mental or
emotional disturbance.

(ce) Whether or not the victim was a participant in the
defendant’s homicidal conduct or consented to the homicidal
act.

(f) Whether or not the offense was committed under cir-
cumstances which the defendant reasonably believed to be a
moral justification or extenuation for his conduct.

(g) Whether or not defendant acted under extreme duress
or under the substantial domination of another person.

(h) Whether or not at the time of the offense the capacity of
the defendant to appreciate the criminality of his conduct or
to conform his conduct to the requirements of law was
impaired as a result of mental disease or defect, or the affects
of intoxication.

(j) Whether or not the defendant was an accomplice to the
offense and his participation in the commission of the offense
was relatively minor.

“ Factors (d) through (h) and factor (j) of the California statute
repeat almost verbatim the language of six of the factors listed in the
Model Penal Code. See Model Penal Code §§ 210.6(b)-(g). The only
significant difference is that the California statute added the confusing
prefatory phrase “whether or not.”

Some uncertainty has recently arisen as to factor (j). The state court
had previously held that factor (j) (the defendant was a minor partici-
pant in the offense) was an exclusively mitigating factor. See, ¢.z.,
Hamilton, 48 Cal.3d at 1184, 774 P.2d at 755, and cases cited in People
v. Proctor, 4 Cal.4th 499, 553, 842 P.2d 1100, 1132. But in Proctor, the
court suggested that the defendant’s sole participation in the offense

24

The state court has also made clear that the absence of these
mitigating factors in a particular case is not to be considered an
aggravating factor. As the court explained, the “purpose of
‘aggravating’ and ‘mitigating’ factors is to assess the seriousness of
a capital crime in relation to others of the same general charac-
ter.” People v. Rodriguez, 42 Cal.3d 730, 788, 726 P.2d 113, 151
(1986). An aggravating circumstance is “a circumstance above
and beyond the essential constituent of a crime which increases
its guilt or enormity or adds to its injurious consequences.” People
v. Davenport, 41 Cal.3d at 289, 710 P.2d at 888. The absence of a
mitigating factor is not a meaningful aggravating factor, because
“the absence of mitigation would not automatically render the
crime more offensive than any other murder of the same general
character.” Jd.

Despite this recognition, the court has refused to require that
juries be instructed that the exclusively mitigating factors are
mitigating only,“ or that these factors be deleted from the
instructions when factually irrelevant.” The court has reasoned
that “the aggravating or mitigating nature of these various factors

might be considered an aggravating factor under factor (j). /d., 4
Cal.4th at 553, 842 P.2d at 1132. See also, People v. Howard, | Cal.4th
1132, 1195, 824 P.2d 1315, 1353, cert. denied, 113 S. Ct. 383 (1992).

“ See, ¢.g., People v. Raley, 2 Cal.4th 870, 919, 830 P.2d 712, 744-45
(1992), cert. denied, 113 S. Ct. 1352 (1993); People v. Jackson, 28
Cal.3d 264, 316, 618 P.2d 149, 176 (1980), cert. denied, 450 U.S. 1035
(1981).

” See, e.g., People v. Sims, 5 Cal.4th 405, 465, $53 P.2d 992, 1029-30
(1993); People v. Miranda, 44 Cal.3d 57, 103-05, 744 P.2d 1127
(1987), cert. denied, 486 U.S. 1038 (1988); People v. Ghent, 43 Cal.3d
739, 776-77, 739 P.2d 1250, 1274 (1987), cert. denied, 485 U.S. 929
(1988).

Although not required to do so, trial judges have on occasion deleted
statutory factors not raised by the evidence. This occurred at petitioner
Tuilaepa’s trial, where the jury was instructed on factors (a), (b), (c),
(i) and (k) only (RT 885). In contrast, the jury at petitioner Proctor’s
trial was instructed on all of the factors contained in section 190.3, and
the prosecutor argued that nine of the statutory factors — every factor
except factors (b) (presence or absence of violent criminal activity) and

25

should be self-evident to any reasonable person within the context
of each particular case.” People v. Jackson, 28 Cal.3d at 316, 618
P.2d at 176. Accord, People v. Zapien, 4 Cal.4th 929, 990, 846
P.2d 704, 739, cert. denied, 114 S. Ct. 315 (1993). Notwithstand-
ing the court’s confidence, as a result of the lack of clarifying
instructions prosecutors and trial judges in many cases have
construed the absence of these mitigating factors as the presence
of aggravating factors, permitting illusory aggravation to be
weighed in favor of a death sentence.

The following examples are typical of the ways in which
prosecutors have encouraged juries to use the absence of mitigat-
ing factors as aggravating factors, thereby distorting the weighing
process and adding artificial weight to death’s side of the scale:

* Illustrating the point with a homemade scale, the district
attorney deemed all of the statutory factors to be aggravat-
ing, except for the absence of prior felony convictions, and
assigned numerical values to each, resulting in a “score” of
22 aggravating points versus 3 mitigating points.”

+ The district attorney argued that the circumstances of the
crime was an aggravating factor, but the absence of prior
violent acts was mitigating. He noted that the defendant’s
prior conviction for a felony was an insignificant aggravat-
ing factor. He then classified all the remaining factors
except (k) as aggravating. He argued that there were two
mitigating and nine aggravating factors. He prepared a
chart listing these factors, which the jury took into the jury
room. During deliberations, the jury requested a copy of
the instructions on which “the chart prepared by the
District Attorney was prepared.”

Prosecutors have included the absence of statutory mitigating
factors in their pretrial notices of aggravation filed with the court

(i) (petitioner’s age) — were aggravating factors (RT 1476-81,
1532-34).

” People v. Gonzalez, 51 Cal.3d at 1233-34, 800 P.2d at 1188.

*' People v. Hamilton, 48 Cal.3d at 1190, 774 P.2d at 759 (Broussard,
J., concurring and dissenting).

26

and served on the defense,” and in closing argument have
characterized factors (d),” (e),” (f),°° (g),” (h),” and even
factor (k),* as factors in aggravation, both before and after the
state court’s decisions construing those factors as mitigating only.

Even in the absence of such prosecutorial arguments, there is
no reason to believe that without judicial guidance jurors will
correctly interpret the factors. As the state court has recognized,
the wording of the statute—and of the instruction patterned upon
it—is ambiguous. The use of the phrase “whether or not” is
susceptible to the interpretation that the absence of a mitigating
factor has some aggravating significance. People v. Davenport,
41 Cal.3d at 289, 710 P.2d at 888. Thus the practice of instructing

2 See, e.g. People v. Beardslee, 53 Cal.3d 68, 112, 806 P.2d 1311,
1336, cert. denied, 112 S. Ct. 449 (1991).

*? See, e.g., People v. Gonzalez, 51 Cal.3d at 1233-34, 800 P.2d at
1187-88; People v. Allison, 48 Cal.3d 879, 901-02, 771 P.2d. 1294, 1310-
11 (1989), cert. denied, 494 U.S. 1090 (1990); People v. Davenport, 41
Cal.3d at 288-89, 710 P.2d at 888.

* See, e.g., People v. Kelly, 1 Cal.4th 495, 548-49, 822 P.2d 385, 416
(1992), cert. denied, 113 S. Ct. 232 (1992); People v. Gallego, 52
Cal.3d 115, 200, 802 P.2d 169, 214 (1990), cert. denied, 112 S. Ct. 337
(1991); People v. Gonzalez, 51 Cal.3d at 1233-34, 800 P.2d at 1187-88;
People v. Lucero, 44 Cal.3d at 1031 n.15, 750 P.2d at 1356-57 n.15.

*> See, e.g., People v. Kelly, 1 Cal.4th at 548-49, 822 P.2d at 416;
People v. Gallego, 52 Cal.3d at 200, 802 P.2d at 214; People v. Lucero,
44 Cal.3d at 1031 n.15, 750 P.2d at 1356-57 n.15.

© See, e.g., People v. Montiel, 5 Cal.4th 877, 936, 855 P.2d 1277, 1311
(1993); People v. Allison, 48 Cal.3d at 902, 771 P.2d at 1310, People v.
Davenport, 41 Cal.3d at 288-89, 710 P.2d at 888.

*” See, e.g. People v. Gonzalez, $1 Cal.3d at 1233-34, 800 P.2d at
1187-88; People v. Davenport, 41 Cal.3d at 288-89, 710 P.2d at 888.

** People v. Brown, 46 Cal.3d at 455, n. 10, 758 P.2d at 1150 n.10: “In
his summation, the prosecutor told the jury that ‘each of those factors’—
apparently, even the alleged absence of mitigating evidence under factor
(k) (‘Any other circumstance which extenuates the gravity of the crime
even though it is not a legal excuse for the crime’)—“is an aggravating
factor...” (emphasis in original).

27

on the statutory mitigators, even when they are factually irrele-
vant, invites the jury to aggravate upon the basis of non-existent
factors. Cf. McCleskey v. Kemp, 481 U.S. 279, 314 n.37 (1987)
(recognizing that “[i]t would be improper and often prejudicial
to allow jurors to speculate as to aggravating circumstances
wholly without support in the evidence”). Indeed, even trial
judges, who are more skilled than jurors at interpreting the law,
have, in a number of cases, assigned aggravating weight to the
absence of mitigating factors.”

An aggravating factor that is based on the absence of one of
California’s enumerated mitigating factors is the quintessence of
an illusory aggravating factor. The California court itself has
recognized that some of the factors, including factor (e), victim
participation, and factor (f), moral justification, are so unusual
that to allow the absence of these factors to be considered
aggravating factors is to make them automatically applicable to
most murderers. People v. Davenport, 41 Cal.3d at 289, 710 P.2d
at 888. Those factors that may occur somewhat more frequently,
such as minor participation, duress, or extreme mental distur-
bance, nevertheless still exist in only a small minority of cases. An
aggravating factor that exists in nearly every capital case fails to
fulfill its purpose, which is to guide the jury in distinguishing
“those who deserve capital punishment from those who do not.”
Arave v. Creech, 507 U.S. —_, 113 S. Ct. 1534, 1542 (1993).

A sentencing process that allows the jury to weigh aggravating
factors based on the absence of mitigating factors creates both of
the risks that Stringer recognized violate the Eighth Amendment.
Because such a process creates aggravating factors that do not

* See, e.g., People v. Kaurish, 52 Cal.3d at 717, 802 P.2d at 316 (trial
judge concluded that factor (h) was aggravating because the defendant
had the capacity to appreciate the criminality of his conduct and was not
impaired by intoxication); People v. Hamilton, 48 Cal.3d at 1186, 774
P.2d at 757 (trial court concluded that one factor, the absence of prior
violent criminal activity, was mitigating, and that the remaining 10
factors, including factor (k), were aggravating); People v. Brown,
46 Cal.3d at 462, 758 P.2d at 1155.

28

rationally make the defendant more deserving of death, it “creates
the risk that the jury will treat the defendant as more deserving of
the death penalty than he might otherwise be by relying upon the
existence of an illusory circumstance.” Stringer v. Black, 503 U.S.
—__., 112 S. Ct. 1130, 1139 (1992). Because such a process
artificially inflates the number of aggravating factors the jury
weighs, it “creates the possibility not only of randomness but of
bias in favor of death.” Id.

© The jury’s consideration of the absence of “extreme” mental or
emotional disturbance, “extreme” duress or the “substantial” domina-
tion of another person (Cal. Penal Code §§ 190.3(d) and (g) (Deering
1994)) as an aggravating factor is unacceptable under the Eighth
Amendment for an additional reason. The text of these factors requires
the jury to make an inherently amorphous determination regarding the
degree of disturbance and domination. Aggravating factors that include
terms like “extreme” and “substantial” do not provide sufficient gui-
dance to avoid arbitrary and capricious sentencing. See, ¢.g., State v.
David, 468 So.2d 1126, 1129-30 (La. 1984), cert. denied, 476 U.S. 1130
(1986) (hoiding vague an aggravating factor which allowed the jury to
impose death based upon a “significant” history of criminal conduct);
State v. White, 395 A.2d 1082 (Del. 1978) (holding vague an aggravat-
ing factor in which the victim was defined as “elderly” or “defense-
less”); Arnold v. State, 224 S.E.2d 386, 391-92 (Ga. 1976) (holding
vague an aggravating factor which allowed the jury to impose death
based upon a “substantial” history of assaultive convictions).

29

CONCLUSION

For the foregoing reasons, the judgments of the California
Supreme Court affirming petitioners’ death sentences should be
reversed.

DATED: January 24, 1994
Respectfully submitted,

CALIFORNIA APPELLATE PROJECT CLIFFORD GARDNER*®
GaIL R. WEINHEIMER GARDNER & DERHAM

Legal Director 900 NORTHPOINT STREET
Cocoa BUILDING, SurtE 450

STEVEN W. PARNES
a SAN FRANCISCO, CA 94109

DANIEL N. ABRAHAMSON

Staff Attorneys MELISSA W. JOHNSON
4104 24th Street, #374

One Ecker Place

Suite J San Francisco, CA 94114

Attorneys for Amicus Curiae

San Francisco, CA 94105 *(C | of )

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0519%3A10. Public record. Not legal advice.