Opposition Brief — Bell v. California (No. 06-1714)

IN THE SUPREME COURT OF THE UNIT

No. 06-1714

— WEAF Ih

DRIANEOF THE CLERK

COURT. Gj

STEVEN M. BELL, Petitioner,

STATE OF CALIFORNIA, Respondent.

Vv.

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF CALIFORNIA

BRIEF IN OPPOSITION TO THE PETITION

FOR WRIT OF CERTIORARI

EDMUND G. BROWN JR.

Attorney General of the State of California

DANE R. GILLETTE

Chief Assistant Attorney General

MANUEL M. MEDEIROS

State Solicitor General

GARY W. SCHONS

Senior Assistant Attorney General

IVY FITZPATRICK

Deputy Attorney General

LYNNE G. MCGINNIS

Deputy Attorney General

California State Bar No. 101090

110 West A Street, Suite 1100

San Diego, CA 92101

P.O. Box 85266

San Diego, CA 92186-5266

Telephone: (619) 645-2205

Fax: (619) 645-2191

Counsel for Respondent

CAPITAL CASE

QUESTIONS PRESENTED

1. Whether, in determining whether Petitioner established a

prima facie case of group bias under Batson v. Kentucky, 476 U.S. 79,

106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), the California Supreme

Court was required to engage in comparative juror analysis for the

first time on appeal, when the California Supreme Court, applying

United States Supreme Court precedent, carefully considered all

relevant factors bearing on its Batson inquiry, but found that on the

particular record before it, any attempt at comparative juror analysis

would have amounted to pure speculation.

2. Whether California’s procedures for death penalty eligibility

and selection comply with the requirement in Apprendi v. New

Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000) and

its progeny, that any fact that increases the penalty for a crime

beyond the statutory maximum must be submitted to a jury, and

proved beyond a reasonable doubt.

il

LIST OF PARTIES

Petitioner Steven M. Bell is a California state prisoner

incarcerated under a judgment of death at the California State Prison

at San Quentin, California.

Respondent is the People of the State of California.

ili

TABLE OF CONTENTS

Page

OPINION OR JUDGMENT BELOW ]

STATEMENT OF JURISDICTION ]

CONSTITUTIONAL AND STATUTORY PROVISIONS |

STATEMENT OF THE CASE 2

STATEMENT OF FACTS 2

REASONS FOR DENYING THE WRIT 3

I. CERTIORARI SHOULD BE DENIED ON

PETITIONER’S BATSON CLAIM BECAUSE THE

CALIFORNIA SUPREME COURT?’S BECISION IS

CONSISTENT WITH THIS COURT’S

JURISPRUDENCE, THERE IS NO NEED FOR

FURTHER GUIDANCE FROM THIS COURT,

THERE IS NO CONFLICT IN THE LAW, AND THE

CALIFORNIA SUPREME COURT?’S RULING WAS

BASED ON THE PARTICULAR FACTS OF THIS

CASE 3

I. CERTIORARI SHOULD BE DENIED ON

PETITIONER’S APPRENDI CLAIM BECAUSE THE

CALIFORNIA SUPREME COURT’S DECISION

FINDING CALIFORNIA’S DEATH PENALTY

ELIGIBILITY AND SELECTION PROCEDURES

CONSTITUTIONAL DOES NOT INVOLVE AN

IMPORTANT FEDERAL QUESTION AND IS

CONSISTENT WITH THIS COURT’S

ESTABLISHED JURISPRUDENCE

=

CONCLUSION 14

1V

TABLE OF AUTHORITIES

Cases

Apprendi v. New Jersey

530 U.S. 466

120 S. Ct. 2348

147 L. Ed. 2d 435 (2000)

Batson v. Kentucky

476 U.S. 79

106 S. Ct. 1712

90 L. Ed. 2d 69 (1986)

Blakely v. Washington

542 U.S. 296

124 S. Ct. 2531

159 L. Ed. 2d 403 (2004)

Boyd v. Newland

455 F.3d 897 (9th Cir. 2006)

Brown v. Sanders

546 U.S. 212

126 S. Ct. 884

163 L. Ed. 2d 723 (2006)

Cunningham v. California

549 U.S. __

127 S. Ct. 856

166 L. Ed. 2d 856 (2007)

Edmonson v. Leesville Concrete Co.

500 U.S. 614

111 S. Ct. 2077

114 L. Ed. 2d 660 (1991

Page

i, 7-13

i, 3-6

7, 9, 10, 12, 13

7, 9, 10, 12, 13

TABLE OF AUTHORITIES (continued)

Page

Georgia v. McCollum

505 U.S. 42

112 S. Ct. 2348

120 L. Ed. 2d 33 (1992) 4

Harris v. United States

536 U.S. 545

122 S. Ct. 2406

153 L. Ed. 2d 524 (2002) 12

J. E. B. v. Alabama ex rel. T. B.

511 U.S. 127

1148S. Ct. 1419

128 L. Ed. 2d 89 (1994) 4

Johnson v. California

545 U.S. 162

125 S. Ct. 2410

162 L. Ed. 2d 129 (2005) 4

Jones v. United States

526 U.S. 227

1198. Ct. 1215

143 L. Ed. 2d 311 (1999) 12

Miller-El v. Dretke

545 U.S. 231

162 L. Ed. 2d 196

125 S. Ct. 2317 (2005) 6

Nichols v. United States

511 U.S. 738

1148S. Ct. 192)

128 L. Ed. 2d 745 (1994) ]2

vi

TABLE OF AUTHORITIES (continued)

People v. Anderson

25 Cal. 4th $43

22 P.3d 347

106 Cal. Rptr. 2d 575 (2001)

People v. Bell

40 Cal. 4th 582

151 P.3d 292

54 Cal. Rptr. 3d 453 (2007)

People v. Griffin

33 Cal. 4th 536

93 P. 3d 344

15 Cal. Rptr. 3d 743 (2004)

People v. Lewis & Oliver

39 Cal. 4th 970

140 P.3d 775

47 Cal. Rptr. 3d 467 (2006)

People v. Prieto

30 Cal. 4th 226

66 P.3d 1123

133 Cal. Rptr. 2d 18 (2003)

People v. Ward

36 Cal. 4th 186

114 P.3d 717

30 Cal. Rptr. 3d 464 (2005)

Powers v. Ohio

499 U.S. 400

111 S. Ct. 1364

113 L. Ed. 2d 411 (1991)

Page

1, 2, 5-7, 9, 11

11,12

1}

13

Vil

TABLE OF AUTHORITIES (continued)

Ring v. Arizona

536 U.S. 584

122 S. Ct. 2428

153 L. Ed. 2d 556 (2002)

Sattazahn v. Pennsylvania

537 U.S. 101

123 S. Ct. 732

154 L. Ed. 2d 588 (2003)

Tuilaepa v. California

512 U.S. 967

114 S. Ct. 2630

129 L. Ed. 2d 750 (1994)

United States v. Watts

519 U.S. 148

117 S. Ct. 633

136 L. Ed. 2d 554 (1997)

Williams v. New York

337 U.S. 241

69 S. Ct. 1079

93 L. Ed. 1337 (1949)

Constitutional Provisions

United States Constitution,

Fifth Amendment

Sixth Amendment

Eighth Amendment

Fourteenth Amendment

Page

7-13

10

9-11, 13

12

Go

2 = ae

Vill

TABLE OF AUTHORITIES (continued)

Page

Statutes

28 U.S.C. § 1257 l

Cal. Penal Code,

§ 190 ]

§ 190.1 ]

§ 190.2 1, 9-11

§ 190.2(a)(17)(A) 2

§ 190.3 1, 10, 11

§ 190.4 ]

Court Rules

Court Rule,

rule 13.1 l

rule 13.3 l

Other Authorities

CALJIC No. 8.88 1]

IN THE SUPREME COURT OF THE UNITED STATES

No. 06-1714

STEVEN M. BELL, Petitioner,

Vv.

STATE OF CALIFORNIA, Respondent.

OPINION OR JUDGMENT BELOW

The California Supreme Court opinion in People v, Bell, 40 Cal.

4th $82, 151 P.3d 292, 54 Cal. Rptr. 3d 453 (2007) (“Bell”). (Pet.

App., at Al-A54.)

The California Supreme Court affirmed Petitioner’s conviction

and death sentence on February 15, 2007. Bell, at 586, 622. (Pet.

App., at A-1, A-54.) Petitioner’s petition for rehearing was denied on

March 28, 2007. (Pet. App., at A55.)

STATEMENT OF JURISDICTION

Petitioner filed a Petition for Writ of Certiorari before this

Court on June 26, 2007, which was docketed on June 27, 2007.

Petitioner asserts jurisdiction under 28 U.S.C. § 1257 and rules 13.1

and 13.3 of this Court.

CONSTITUTIONAL AND STATUTORY PROVISIONS

Petitioner relies on the Fifth, Sixth, Eighth and Fourteenth

Amendments to the United States Constitution. These provisions are

set forth in the Petition for Writ of Certiorari at pages 1-2. Sections

190, 190.1, 190.2, 190.3 and 190.4 of the California Penal Code are

reproduced in Petitioner’s Appendix. (Pet. App., at A56-A70.)

STATEMENT OF THE CASE

On March 7, 1994, Petitioner Steven M. Bell was sentenced to

death, after a California jury found him guilty of one count of first

degree murder, one count of first degree robbery, and found as true

allegations of personal use of a deadly weapon, personal infliction of

great bodily injury, and a robbery-murder special circumstance

pursuant to California Penal Code section 190.2(a)(17)(A). The

California Supreme Court affirmed the judgment on February 15,

2007, and denied a petition for rehearing on March 28, 2007. (Pet.

App., at Al-A54, A5S.)

STATEMENT OF FACTS

In 1992, Petitioner was living with his girlfriend and her eleven-

year-old son, Joey Anderson, in San Diego. After obtaining a

government relief check and spending it all on crack cocaine,

Petitioner returned to his girlfriend’s house planning to steal the

television set and stereo, so he could sell them to buy more crack

cocaine. When Joey unexpectedly came home from school early that

day, Petitioner stabbed and stomped Joey to death as Joey was

watching television in his mother’s bedroom. Petitioner then took the

television set and stereo, and sold them for drugs. Petitioner left

Joey’s body behind for his mother to find when she returned home

from work. Petitioner was arrested the following morning, and later

in the day, agreed to be interviewed and voluntarily confessed to

killing Joey. Bell, 40 Cal. 4th at 586-87. (Pet. App., at Al-A3.)

REASONS FOR DENYING THE WRIT

CERTIORARI SHOULD BE DENIED ON

PETITIONER’S BATSON CLAIM BECAUSE THE

CALIFORNIA SUPREME COURT?’S DECISION IS

CONSISTENT WITH THIS COURT’S

JURISPRUDENCE, THERE IS NO NEED FOR

FURTHER GUIDANCE FROM THIS COURT,

THERE IS NO CONFLICT IN THE LAW, AND THE

CALIFORNIA SUPREME COURT’S RULING WAS

BASED ON THE PARTICULAR FACTS OF THIS

CASE

Petitioner asks this Court to grant certiorari to review the

California Supreme Court’s decision which found Petitioner had not

demonstrated a prima facie case, under Batson v. Kentucky, 476 US.

79 (“Batson”), that the prosecutor impermissibly challenged six

jurors because of group bias. Petitioner contends that guidance is

needed from this Court as to whether “comparative juror analysis”

(i.e., a comparison of seated jurors to those who were excused) is an

appropriate consideration at the first stage of a Batson inquiry.

Petitioner further contends that the California Supreme Court erred

when it concluded Petitioner did not meet his initial burden under

Batson. (Pet. at 4-11.)

Respondent disagrees. Certiorari should be denied because

Petitioner has tailed to raise an important federal question. Instead,

Petitioner is attempting to use certiorari review to reargue the

California Supreme Court’s application of this Court’s precedent to

his particular case. Moreover, there is no need for additional

clarification from this Court on the issue of comparative juror

analysis, nor is there a conflict in need of resolution. Finally, this

case is not an appropriate one for thic ‘curt to further evaluate the

issue of comparative juror analysis, . a if it is inclined to do so.

In Batson, this Court held that the Equal Protection and Due

Process Clauses preclude a prosecutor from challenging prospective

jurors because of race, or on the assumption that jurors of a particular

race will be more sympathetic to the defense. Batson, 476 U.S. at 92-

93." This Court set forth a three-part test for determining whether

peremptory challenges were constitutionally impermissible: (1) the

moving party must make a prima facie showing the jurors were

excluded because of group bias; (2) once a prima facie case is made,

the burden shifts to the opposing party to provide a group-neutral

explanation for the challenges; and (3) the trial court determines

whether the moving party has carried his burden of proving

purposeful discrimination. Jd. at 93-94.

In Johnson vy. California, 545 U.S. 162, 125 S. Ct. 2410, 162 L.

Ed. 2d 129 (2005) (“Johnson’’), this Court held that California’s

prima facie case standard, that the moving party show a “strong

likelihood” of group bias, or that challenges were “more likely than

not” based on group bias, was too high. Rather, the proper standard

was whether “the totality of the relevant facts gives rise to an

inference of group bias.” Johnson, at 168 (quoting Batson, at 93-94).

In his appeal to the California Supreme Court, Petitioner alleged

error in the trial court’s denial of his Batson motion for failure to

establish a prima facie case as to six prospective jurors: two African-

American women, two men who he thought might be Filipino-

Americans, and two women he perceived were lesbians. After

briefing was complete, this Court issued its decision in Johnson.

Thereafter, before oral argument, the California Supreme Court

requested supplemental briefs from the parties concerning the effect

of Johnson on Petitioner’s Batson claim.

In its opinion, the California Supreme Court assumed for

purposes of its analysis that the trial court here used an improper

1. This Court subsequently applied Batson’s anti-

discrimination rule to the use of peremptory challenges by criminal

defendants, Georgia v. McCollum, 505 U.S. 42, 112 S. Ct. 2348, 120

L. Ed. 2d 33 (1992), by private litigants in civil cases, Edmonson v.

Leesville Concrete Co., 500 U.S. 614, 111 S. Ct. 2077, 114 L. Ed. 2d

660 (1991), and by prosecutors where the defendant and the excluded

juror(s) are of different races, Powers v. Ohio, 499 U.S. 400, 111 S.

Ct. 1364, 113 L. Ed. 2d 411 (1991); and has held that equal

protection principles prohibit excusing jurors because of gender. J.

E. B. v. Alabama ex rei. T. B., $11 U.S. 127, 114. S. Ct. 1419, 128 L.

Ed. 2d 89 (1994). Constitutionally impermissible peremptory

challenges are referred to herein as challenges based on group bias.

*

standard, i.e., “strong likelihood,” in finding no prima facie case.

Bell, 40 Cal. 4th at 596. (Pet. App., at A16.) The California Supreme

Court stated that it would thus independently review the record, apply

the standard in Johnson, and resolve the legal question of whether the

record supported an inference the prosecutor excused a juror for a

constitutionally impermissible basis. Bel/, 40 Cal. 4th at 597. (Pet.

App., at Al6.)

The California Supreme Court stated that courts shou!d consider

all information in the record in determining whether there was a

prima facie case. By way of example, the California Supreme Court

set forth several considerations which this Court, lower federal courts

and California state courts have found are important in making this

determination: (1) whether the prosecutor struck more or all members

of the identified group from the venire; (2) whether the only

characteristic shared by the challenged jurors was their membership

in the group while in all other respects they were as heterogenous as

the entire pool of prospective jurors; (3) whether the prosecutor’s

voir dire of the challenged jurors was particularly desultory or non-

existent; and (4) whether the defendant was member of the group

allegedly excluded from the jury while the victim was a member of

the group to which a majority of the remaining seated jurors belong.

Bell, 40 Cal. 4th at 597. (Pet. App., at A17.)

The California Supreme Court then thoroughly examined the

record in Petitioner’s case in light of these settled legal principles.

The California Supreme Court found that the facts of Petitioner’s

case did not support an inference of discrimination under Johnson as

to any of the six prospective jurors about which Petitioner

complained. Bell, 40 Cal. 4th at 597-600. (Pet. App., at Al8-A22.)

In his instant Petition for Certiorari, Petitioner repeats verbatim

the arguments he made in the California Supreme Court. Petitioner

advances his interpretation of the facts regarding the jurors under

consideration, and asserts that the tral court was wrong to find lack

ofa prima facie case. Petitioner expresses his disagreement with the

ruling to the contrary by the California Supreme Court. (Pet. 7-11.)

Petitioner’s dispute with the California Supreme Court’s application

of settled legal principles and with its factual findings does not justify

certiorari review. United States Supreme Court Rules, rule 10.

Petitioner contends that a grant of certiorari is appropriate

because the California Supreme Court failed to evaluate all relevant

circumstances when it rejected his Batson claim. (Pet. at 4.)

Specifically, Petitioner claims the California Supreme Court

“refused” to engage in comparative juror analysis and that the

California Supreme Court’s decision conflicts with the Ninth

Circuit’s decision in Boyd v. Newland, 455 F.3d 897 (9th Cir. 2006)

(“Boyd”). Petitioner argues that Miller-El v. Dretke, 545 U.S. 231,

162 L. Ed. 2d 196, 125 S. Ct. 2317 (2005), which concerned

comparative analysis at the third stage of a Batson inquiry, allows

such evidence to be introduced at the first stage, and that the

California Supreme Court erred in “refusing” to consider such

evidence. (Pet. at 4-7.)

Petitioner mis-characterizes the California Supreme Court's

holding. The California Supreme Court did not categorically

foreclose the possibility of comparative juror analysis, as Petitioner

asserts. (Pet. at 6.) The California Supreme Court merely stated that

comparative analysis was not required at the first stage of the Batson

inquiry, when no such analysis was ever done in the trial court. Bell,

40 Cal. 4th at 601. (Pet. App., at A22-A23.)

The holding of the California Supreme Court is not inconsistent

with the Ninth Circuit’s decision in Boyd. The issue in Boyd was

whether a California Court of Appeal acted unreasonably when it

upheld the trial court’s denial of a defendant’s Batson motion for lack

of a prima facie case, without providing the indigent defendant with

a transcript of the entire voir dire proceedings for purposes of appeal.

Boyd, 455 F.3d at 900. The Ninth Circuit held that a transcript was

necessary, and remanded the case to the California state courts with

directions to give the transcript to the parties and reconsider the

merits of the alleged Batson error. Jd. at 908-09.

In its discussion of why the transcript was important, the Ninth .

Circuit noted that to review a ruling on a Batson motion, an appellate

court had to examine the totality of the relevant facts. Boyd, 455 F.3d

at 904-05. The Ninth Circuit stated that in appropriate cases, such

analysis may include comparative juror analysis. /d. at 906. The

Ninth Circuit was careful to point out its agreement with California

state courts on the necessity, or lack thereof, of comparative juror

analysis, explaining, “Like the various California courts to address

the issue, we do not hold that comparative juror analysis always is

compelled at the appellate level.” /d. (emphasis in original) (citing

People v. Ward, 36 Cal. 4th 186, 114 P.3d 717, 30 Cal. Rptr. 3d 464

(2005)). An analogous holding was reached in Petitioner's case, 1.e.,

that comparative analysis was not required. Bell, 40 Cal. 4th at 601.

(Pet. App. at A22-A23.)

Moreover, like the Ninth Circuit in Boyd, the California

Supreme Court noted that an evaluation of the trial court’s finding of

no prima facie case necessitated a review of all relevant information

in the appellate record. Bell, 40 Cal. 4th at 597. (Pet. App., at A17.)

The California Supreme Court simply found that here, comparative

juror analysis was not a relevant consideration, because statements

by Petitioner’s counsel at the time of the Batson motion that the

challenged jurors were “nondescript,” “not controversial,” or “‘as

about as neutral as any juror” were too vague and general to engage

in a comparative analysis between these jurors and those who were

seated as to other unspecified criteria. Bel/, 40 Cal. 4th at 601. (Pet.

App., at A23-A24.) Because the California Supreme Court based its

decision on the particular facts of Petitioner’s case, i.e., lack of any

comparative analysis at trial which would provide a means to engage

in such analysis on appeal, this case would not provide a good

vehicle for certiorari. For this reason, too, certiorari should be

denied.

Il.

CERTIORARI SHOULD BE DENIED ON

PETITIONER’S APPRENDI CLAIM BECAUSE THE

CALIFORNIA SUPREME COURT?’S DECISION

FINDING CALIFORNIA’S DEATH PENALTY

ELIGIBILITY AND SELECTION PROCEDURES

CONSTITUTIONAL DOES NOT INVOLVE AN

IMPORTANT FEDERAL QUESTION AND IS

CONSISTENT WITH THIS COURT’S

ESTABLISHED JURISPRUDENCE

Petitioner asserts that certiorari is necessary because California

law does not require penalty phase jurors to unanimously agree

beyond a reasonable doubt: (1) on the facts that constitute

aggravating factors; and (2) that the aggravating factors substantially

outweigh the mitigating factors. Petitioner argues that by failing to

impose these requirements, California violates Apprendi v. New

Jersey, 530 U.S. 466 ("Apprendi"), and its progeny, namely Ring v.

Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002)

("Ring"), Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159

L. Ed. 2d 403 (2004) ("Blakely") and Cunningham v. California, 549

US. , 1278. Ct. 856, 166 L. Ed. 2d 856 (2007) ("Cunningham").

(Pet. 12-26.)

Certiorari should be denied. The California Supreme Court’s

decision upholding California’s death penalty eligibility and selection

procedures comports with Apprendi. Eligibility for the death penalty

is determined in the guilt phase by a unanimous jury finding of guilt

of first degree murder and the existence of a special circumstance by

proof beyond a reasonable doubt. The subsequent penalty selection

phase, involving traditional sentencing considerations and no burden

of proof (with the exception of proof of other crimes evidence), does

not increase the defendant’s authorized punishment.

In Apprendi, this Court found unconstitutional a New Jersey

statute allowing for imposition of a "hate crime" enhancement

without a jury finding. This Court held that "other than the fact ofa

prior conviction, any fact that increases the penalty for a crime

beyond the prescribed statutory maximum must be submitted to a

jury, and proved beyond a reasonable doubt.’" Apprendi, 530 U.S.

at 490.

Ring extended the Apprendi decision to capital cases. In Ring,

this Court invalidated Arizona’s capital sentencing scheme because

death could be imposed only after the judge, sitting as the sentencer

without a jury, found at least one specifically enumerated aggravating

factor to be true. Ring, 536 U.S. at 592-93. In reaching its

conclusion, this Court explained:

[I1]f a State makes an increase in a defendant’s authorized

punishment contingent on the finding of a fact, that fact - no

matter how the State labels it - must be found by a jury beyond

a reasonable doubt. [Citation.] A defendant may not be

"expose[d] to a penalty exceeding the maximum he would

receive if punished according to the facts reflected in the jury

verdict alene." [Citations.]

Ring, 536 U.S. at 602 (emphasis added) (quoting Apprendi, 502 U.S.

at 482-83).

In Blakely, this Court held that a Washington state trial court

violated the defendant’s Sixth Amendment right to a jury trial when

it sentenced him to a ninety-month "exceptional sentence," which

was thirty-seven months beyond the crime’s "standard range” of

forty-nine to fifty-three months under Washington state law, based on

a finding by the court that the defendant had acted with deliberate

cruelty in committing the crime. This Court reasoned that fifty-three

months was the statutory maximum for Apprendi purposes. Because

no jury found beyond a reasonable doubt the fact supporting the trial

court’s upward departure from the fifty-three-month statutory

maximum, the defendant was denied his right to a jury trial. Blakely,

542 U.S. at 298-305.

In Cunningham, this Court held that California’s procedure for

selecting upper term sentences under its Determinate Sentencing Law

("DSL"), like the exceptional sentence provisions at issue in Blakely,

violated the defendant’s Sixth and Fourteenth Amendment right to a

jury trial, because the DSL "assigns to the trial judge, not to the jury,

the authority to find the facts that expose a defendant to an elevated

‘upper term’ sentence." Cunningham, 127 S. Ct. at 860. This Court

found that because imposition of an aggravated term required

additional fact finding by a judge, the middle term was the "statutory

maximum" under the DSL. /d. at 860, 868.

California’s death penalty procedures satisfy the requirements

of Apprendi, Ring, Blakely and Cunningham. In California, not all

defendants convicted of first degree murder are subject to the death

penalty. Instead, "a defendant in California is eligible for the death

penalty when the jury finds him guilty of first-degree murder and

finds one of the § 190.2 special circumstances true." Tuilaepa v.

California, 512 U.S. 967, 975, 114 S. Ct. 2630, 129 L. Ed. 2d 750

(1994) (emphasis added); accord, Brown v. Sanders, 546 U.S. 212,

220, 126 S. Ct. 884, 163 L. Ed. 2d 723 (2006); Bell, 40 Cal. 4th at

620 (Pet. App., at A52). Accordingly, the special circumstances

listed in California Penal Code section 190.2 are the "functional

equivalent of an element of a greater offense” which must be found

true by a jury beyond a reasonable doubt. Ring, 536 U.S. at 609,

citing Apprendi, 530 US. at 494 n.19.

In a California death penalty case, all determinations necessary

to make the defendant eligible for death (crime, degree, and special

circumstance) are made by the jury unanimously and beyond a

reasonable doubt at the guilt phase. Bell, 40 Cal. 4th at 620 (Pet.

App., at A52); People v. Anderson, 25-€al. 4th 543, 589 n.14, 22

P.3d 347, 106 Cal. Rptr. 2d 575 (2001). Here, the jury made all

factual findings, unanimously and beyond a reasonable doubt, that

rendered Petitioner eligible for the death penalty. Specifically, the

jury found Petitioner guilty of first degree murder and found as true

a robbery-murder special circumstance. Bel/, 40 Cal. 4th at 594.

10

(Pet. App., at Al2.) Accordingly, the California Supreme Court’s

rejection of Petitioner’s argument does not conflict with this Court’s

decisions in Apprendi, Ring, Blakely or Cunningham.

In arguing that California’s death penalty law is infirm,

Petitioner confuses the term "aggravating circumstance" as used in

Ring, which he seems to equate with "aggravating circumstances" in

a special sense in California Penal Code section 190.3. (Pet. at 18-

21,23.) In fact, the "special circumstances" in California Penal Code

section 190.2, which must be proven to a jury beyond a reasonable

doubt, are the facts that are equivalent to "aggravating circumstances"

in this Court’s Ring jurisprudence. See Tuilaepa v. California, 512

U.S. at 971-76.

This Court’s restatement of the holding of Ring in Sattazahn v.

Pennsylvania, 537 U.S. 101, 123 S. Ct. 732, 154 L. Ed. 2d 588

(2003) compels this conclusion:

In Ring v. Arizona, 535 U.S. 584... , we held that aggravating

circumstances that make a defendant eligible for the death

penalty ‘operate as ‘the functional equivalent of an element of

a greater offense.’ That is to say, for purposes of the Sixth

Amendment’s jury-trial guarantee, the underlying offense of

"murder" is a distinct, lesser included offense of "murder plus

one or more aggravating circumstances": Whereas the former

exposes a defendant to a maximum penalty of life

imprisonment, the latter increases the maximum permissible

sentence to death. Accordingly, we held that the Sixth

Amendment requires that a jury, and not a judge, find the

existence of any aggravating circumstances, and that they be

‘ound, not by a mere preponderance of the evidence, but beyond

a reasonable doubt. /d. at 608-609[.]

Sattazahn v. Pennsylvania, 537 U.S. at 111. (Emphasis added.)

As Sattazahn’s discussion of Ring makes clear, what Ring

referred to as 4 "aggravating circumstance" is what California calls

a "special circumstance," i.e., that which authorizes an increase in the

maximum permissible sentence to death. As noted, in a California

death penalty case, once the jury has unanimously determined beyond

a reasonable doubt that a first-degree murder under special

circumstances has been committed, there is no further factual

question which must be resolved before death can be imposed.

11

Tuilaepa v. California, 512 U.S. at 975; Cal. Penal Code § 190.2.

Once the jury determines a defendant is eligible for the death

penalty, the nature of the proceedings fundamentally changes. At the

penalty phase, there are no specified factual determinations to make

as such, only a normative, moral evaluation of the offense and the

offender based on the considerations listed in California Penal Code

section 190.3. Bell, 40 Cal. 4th at 621 (Pet. App., at A-51); People

v. Lewis & Oliver, 39 Cal. 4th 970, 1067, 140 P.3d 775, 47 Cal. Rptr.

3d 467 (2006); Cal. Penal Code § 190.3. Thus, penalty phase jurors,

including the ones in Petitioner’s case, are instructed:

[Y]ou shall consider, take into account and be guided by the

applicable factors of aggravating and mitigating

circumstances[.] .... In weighing the various circumstances

you ‘determine under the relevant evidence which penalty is

justified and appropriate by considering the totality of the

aggravating circumstances with the totality of the mitigating

circumstances. To return a judgment of death, each of you must

be persuaded that the aggravating circumstances are so

substantial in comparison with the mitigating circumstances that

it warrants death instead of life without parole.

California Criminal Jury Instructions ("CALJIC") No. 8.88; 52 RT

4411-4412.

At no point is the penalty jury instructed that any additional

factual finding is necessary to impose death.

As the California Supreme Court explained in rejecting an

Apprendi/Ring claim like Petitioner’s:

Under the law of this state, all of the facts that increase the

punishment for murder of the first degree -- beyond the

otherwise prescribed maximum of life imprisonment with

possibility of parole to either life imprisonment without

possibility of parole or death -- already have been submitted to

a jury (and proved beyond a reasonable doubt to the jury's

unanimous satisfaction) in connection with at least one special

circumstance, prior to the commencement of the penalty phase.

(See § 190.2.)

People v. Griffin, 33 Cal. 4th 536, 595, 93 P. 3d 344, 15 Cal. Rptr. 3d

743 (2004).

12

Consequently, no further facts need to be proved at the penalty

phase in order to increase the punishment to either death of life

without the possibility of parole as both are proscribed as possible

penalties. People v. Griffin, 33 Cal. 4th at 595. While at the penalty

phase the choice between the two proscribed sentences depends on

a determination as to which penalty is more appropriate, which in

turn depends on a determination of whether the evidence in

aggravation substantially outweighs that in mitigation, "the ultimate

determination of the appropriateness of the penalty and the

subordinate determination of the balance of evidence of aggravation

and mitigation do not entail the finding of facts that can increase the

punishment for murder of the first degree beyond the maximum

otherwise prescribed." People v. Griffin, 33 Cal. 4th at 595.

Furthermore, "those determinations do not amount to the finding of

facts, but rather constitute a single fundamentally normative

assessment [citations] that is outside the scope of Ring and

Apprendi." Id.

The California Supreme Court’s holding in this regard is

entirely consistent with this Court’s precedent. The penalty-phase

task of assessing aggravating and mitigating factors falling within the

traditional scope of capital sentencing, which inform the choice

between a greater and a lesser penalty, does not raise the ceiling of

the sentencing range available. Jones v. United States, 526 U.S. 227,

251,119 S. Ct. 1215, 143 L. Ed. 2d 311 (1999). As this Court

observed in another case interpreting Apprendi, not "every fact with

a bearing on sentencing must be found by a jury; we have resolved

that general issue and have no intention of questioning its

resolution.’" Harris v. United States, 536 U.S. 545, 558, 122 S.Ct. .

2406, 153 L. Ed. 2d 524 (2002) (plurality opinion) (quoting Jones,

526 U.S. at 248). Thus, "factfinding in the course of selecting a

sentence within the authorized range does not implicate the

indictment, jury-trial, and reasonable-doubt components of the Fifth

and Sixth Amendments." Harris v. United States, 536 U.S. at 558;

see United States v. Watts, 519 U.S. 148, 156, 117 S. Ct. 633, 136 L.

Ed. 2d 554 (1997) (per curiam); Nichols v. United States, 511 U.S.

738, 747, 1148S. Ct. 1921, 128 L. Ed. 2d 745 (1994); Williams v. New

York, 337 U.S. 241, 246, 69 S. Ct. 1079, 93 L. Ed. 1337 (1949).

Because Apprendi, Ring, Blakely, and Cunningham apply only to

those factual] determinations that raise the ceiling of the sentencing

range available, Harris and Jones confirm that California’s penalty

13

phase procedures are not constitutionally infirm.

In short, both this Court and the California Supreme Court have

held that under California law, death is an available punishment upon

conviction of first degree murder under special circumstances.

Tuilaepa v. California, 512 U.S. at 974; People v. Prieto, 30 Cal. 4th

226, 262-63, 66 P.3d 1123, 133 Cal. Rptr. 2d 18 (2003). Nothing in

Apprendi, Ring, Blakely, or Cunningham suggest that the

constitutional safeguards discussed therein apply at the penalty

selection phase, where jurors are deciding whether the evidence in

aggravation and mitigation warrants imposition of the already-

authorized death penalty. Accordingly, there is no basis for this

Court to grant certiorari.

14

CONCLUSION

For the foregoing reasons, Respondent respectfully requests that

certiorari be denied.

LGM:-ms

70095738 wpd

$D1994XS0002

Dated: July 18, 2007

Respectfully submitted,

EDMUND G. BROWN JR.

Attorney General of the State of California

DANE R. GILLETTE

Chief Assistant Attorney General

MANUEL MEDEIROS

State Solicitor General

GARY W. SCHONS

Senior Assistant Attorney General

IVY FITZPATRICK

DeputyfAttorney Genera]

CGINNIS

Depuy Attorney General

Coumel of Record

Counsel for Respondent