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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2007

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_1130%3A2. Public record. Not legal advice.