Opposition Brief — Arias v. California

COPY

No. 96-1444

, pene eee

IN THE SUPREME COURT OF THE UNITED STATES:

OCTOBER TERM, 1996

APR 2S

PEDRO ARIAS,

Petitioner,

V.

PO Orr wt hee

.

1

STATE OF CALIFORNIA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES SUPREME COURT

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

DANIEL E. LUNGREN

Attorney General

GEORGE WILLIAMSON

Chief Assistant Attorney General

ROBERT R. ANDERSON

Senior Assistant Attorney General

MARGARET VENTURI

Supervising Deputy Attorney General

WARD A. CAMPBELL, Assistant

Supervising Deputy Attorney General

ALISON ELLE ALEMAN

Deputy Attorney General

Counsel of Record

1300 I St., Suite 125; P.O. Box 944255

Sacramento, CA 94244-2550

Telephone: (916) 324-5164

Counsel for Respondent

CAPITAL CASE

QUESTIONS PRESENTED

1. Does a determination by the state’s highest

court that trial courts need not engage in comparative

analysis of the responses of excluded minority venire

members violate the holding of Batson v. Kentucky and the

equal. protection clause of the Fourteenth Amendment?

2. Dothe due process right to an impartial jury

and the Eighth Amendment requirement of reliability in

capital sentencing prohibit allowing the same jury which

has just convicted a defendant of murder in the guilt trial

to then adjudicate in a penalty trial whether the defendant

is guilty of other uncharged crimes?

3. Does California’s 1978 Capital Punishment

Statute violate the Eighth Amendment because it fails to

narrow the class of offenders who are eligible for the

death penalty?

LIST OF PARTIES

Petitioner Pedro Arias is a prisoner incarcerated

under judgment of death at the California State Prison at

San Quentin, California. Respondents are James H.

Gomez, Director, California Department of Corrections,

Daniel Vasquez, Warden of the California State Prison at

San Quentin, and the People of the State of California.

ii

TABLE OF CONTENTS

Page

OPINION AND ORDER BELOW 1

STATEMENT OF JURISDICTION 1

CONSTITUTIONAL PROVISIONS 2

STATEMENT OF THE CASE 2

STATEMENT OF FACTS 3

REASONS FOR DENYING THE WRIT 4

ARGUMENT 4

I. THE CALIFORNIA SUPREME COURT DID

NOT VIOLATE THE EQUAL PROTECTION

CLAUSE OF THE FOURTEENTH

AMENDMENT 4

Ii. THE TRIAL COURT PROPERLY DENIED

PETITIONER’S MOTIONS FOR SEPARATE

JURIES AT THE GUILT- AND PENALTY-

PHASE TRIALS 12

a ae

iil

TABLE OF CONTENTS, CONT’D

III. PETITIONER LACKS STANDING TO CLAIM

THAT THE CALIFORNIA STATUTORY

SCHEME DOES NOT ADEQUATELY

NARROW THE CATEGORIES OF DEATH-

ELIGIBLE MURDERERS NOR DOES HE

PRESENT A CASE OR CONTROVERSY FOR

THIS COURT’S REVIEW SINCE

PETITIONER WAS NOT SENTENCED TO

DEATH UNDER THE CURRENT

CALIFORNIA LAW AND SINCE THE STATE

LAW APPLIED IN PETITIONER’S CASE

ACTUALLY APPLIES TO A NARROWER

CLASS OF MURDERERS 14

CONCLUSION 16

iv

TABLE OF AUTHORITIES

Cases

Arave v. Creech

507 U.S. 463 (1993)

Arizonians for Official English v. Arizona

US. , 117 SA. 1055 (3997)

Bacigalupo v. California

506 U.S. _, 121 L.Ed.2d 5 (1992)

Batson v. Kentucky

476 U.S. 79 (1986)

Buchanan v. Kentucky

483 U.S. 402 (1987)

Burks v. Borg

27 F.3d 1424 (9th Cir. 1994)

Holland v. Illinois

493 U.S. 474 (1990)

Lockhart v. Fretwell

506 U.S. 364 (1993)

People v. Arias

13 Cal.4th 92 (1996)

People v. Bacigalupo

1 Cal.4th 103 (1991)

=

®

15

10

12

i, 4-6, 9, 11

12

10

Di ty OA

12

TABLE CF AUTHORITIES, CONT’D

People v. Balderas

41 Cal.3d 144 (1985)

People v. Dunn

40 Cal.App.4th 1039 (1995)

People v. Espinoza

3 Cal.4th 806 (1992)

People v. Garceau

6 Cal.4th 140 (1993)

People v. Gordon

3 Cal.4th 195 (1992)

People v. Hall

35 Cal.3d 168 (1983)

People v. Johnson

3 Cal.4th 1183 (1992)

People v. Johnson

47 Cal.3d 1194 (1989)

People v. McPeters

2 Cal.4th 1148 (1992)

People v. Trevino

39 Cal.3d 667 (1985)

People v. Wheeler

22 Cal.3d 258 (1978)

12

10

12

10

4, 10, 2]

5, 11

vi

TABLE OF AUTHORITIES, CONT’D

Picard v. Connor

404 U.S. 270 (1971) 5 |

Purkett v. Elam |

514 U.S. 765 (1995) 5

Sochor v. Florida

504 U.S. 527 (1992) 15

Teague v. Lane |

489 U.S. 288 (1989) 5

Tison v. Anzona

481 U.S. 137 (1987) 15

Tuilaepa v. California

512 U.S. _, 114 S.Ct. 2630 (1994) 15

United States v. Chinchilla

874 F.2d 695 (9th Cir. 1989) 10

Walton v. Arizona ;

497 U.S. 639 (1990) 15 i

ee ee eee

Constitutional Provisions

aS NC Ahi ree!

United States Constitution

Fifth Amendment 2

Sixth Amendment 2, 32 |

Eighth Amendment De eT i

4

Fourteenth Amendment i, 4, 12, 14 ;

Vii

TABLE OF AUTHORITIES, CONT’D

Statutes

28 U.S.C. § 1257, subd. (a)

California’s 1978 Capital Punishment Statute

California Penal Code

§ 187

§ 189

§ 190.2, subd. (a)(17)

§ 190.4, subd. (e)

§ 207, subd. (a)

§ 209, subd. (b)

§ 211

§ 261, subd. (2)

§ 288a, subd. (c)

§ 289, subd. (a)

§ 664/286, subd. (c)

§ 12022, subd. (b)

§ 12022.3, subd. (a)

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OPINION AND ORDER BELOW

The opinion of the California Supreme Court is reported

at 13 Cal.4th 92 (1996). A copy is attached to the petition as

petitioner’s Appendix A, pages one through one hundred twenty-

eight. A copy of the order denying rehearing is attached to the

petition as petitioner’s Appendix B.

STATEMENT OF JURISDICTION

This Court’s jurisdiction to grant certiorari is properly

invoked under 28 U.S.C. section 1257, subdivision (a). The

opinion of the California Supreme Court was filed April 11, 1996,

and that court denied petitioner’s timely petition for rehearing on

July 10, 1996. Pet. Apps. A & B. On October 1, 1996, Associate

Justice O’Connor granted petitioner’s request for an extension of

time within which to file this petition to and including November

7, 1996. Pet. App. C. Thereafter, petitioner’s first petition for a

writ of certiorari, dated November 7, 1996, was submitted to this

Court for filing. However, petitioner did not submit a declaration

of indigency with the petition. On November 20, 1996, petitioner’s

counsel submitted a motion for leave to file in forma pauperis

without a declaration of indigency, which informed the Court that

petitioner refused to cooperate with counsel and sign the

declaration. Pet. App. C-1. Petitioner’s motion was denied by this

Court on January 6, 1997. Pet. App. C-2. On January 7, 1997,

petitioner’s counsel confirmed by letter this Court’s permission to

refile the petition, without in forma pauperis status, within sixty

(60) days from January 6, 1997. Pet. App. C-3. The instant

petition was submitted by mail by petitioner on March 7, 1997, and

was filed by this Court on March 13, 1997.

CONSTITUTIONAL PROVISIONS

Petitioner is invoking the Fifth, Sixth, Eighth and

Fourteenth Amendments of the United States Constitution.

Petitioner has set forth said amendments in Appendix D, attached

to his petition.

STATEMENT OF THE CASE

On November 20, 1989, a jury convicted petitioner Pedro

Arias of the May 23, 1987, first degree murder, California Penal

Code sections 187, 189,4 of Jon Waltrip, and robbery, section 211,

of Jon Waltrip, Tina Cheatham, and Larry Galvin. The jury also

found true the special circumstance under California’s 1978 death

penalty laws that the murder was committed during the

commission of a felony, robbery, section 190.2, subdivision (a)(17);

and found true the allegation that petitioner was personally armed

with a knife within the meaning of section 12022, subdivision (b),

in the commission of these charges. The jury also convicted

petitioner of the June 5, 1987, kidnap, section 207, subdivision (a),

robbery, section 211, kidnap for robbery, section 209, subdivision

(b), forcible penetration, section 289, subdivision (a), attempted

forcible sodomy, sections 664/286, subdivision (c), forcible oral

copulation, section 288a, subdivision (c), and forcible rape, section

261, subdivision (2), of Judy N.; and of the June 5, 1987, robbery,

section 211 of Linda McCord. The jury also found true allegations

that petitioner personally used a firearm within the meaning of

section 12022.3, subdivision (a), in the commission of the June 5,

1987, offenses.

On December 21, 1989, following a penalty trial, the jury

returned its verdict fixing the penalty at death.

On February 22, 1990, the trial court denied petitioner’s

automatic motion for modification of the verdict, section 190.4,

1. Hereinafter, all statutory references are to the California

Penal Code unless otherwise indicated.

]

{

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subdivision (e), and sentenced petitioner to death for the first

degree murder, plus an aggregate determinate term of sixty-nine

years, four months, for all remaining counts.

Petitioner’s appeal to the Supreme Court of California

was automatic. On April 11, 1996, that court was convinced after

“careful review of the record" that "the trial was fundamentally fair

and its determinations reliable. No basis for reversal appears." In

a majority opinion of six justices, plus one concurring opinion, all

justices joined in the affirmance. People v. Arias, 13 Cal.4th 92

(1996), hereinafter "Arias," Pet. App. A 1-126. The court denied

rehearing on July 10, 1996. Pet. App. B.

STATEMENT OF FACTS

The facts of the offenses, which are not pertinent to the

issues raised in the within petition for certiorari, are set forth in

detail in the California Supreme Court opinion attached to the

petition as Appendix A, pages one through twenty, and are

incorporated herein by reference. In summary, on May 23, 1987,

petitioner robbed a Beacon gas station at knifepoint and stabbed

clerk John Waltrip to death. Subsequently, on June 5, 1987,

petitioner kidnapped, raped, robbed and otherwise sexually

assaulted June N. The specific facts pertaining to each issue are

addressed within the arguments in opposition to this petition.

REASONS FOR DENYING THE WRIT

ARGUMENT

I.

THE CALIFORNIA SUPREME COURT DID NOT VIOLATE

THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH

AMENDMENT

Petitioner contends that California Supreme Court erred

in concluding that the trial court has no obligation to perform a

comparative analysis in deciding the validity of an equal protection

claim pursuant to Batson v. Kentucky, 476 U.S. 79 (1986)

("Batson")* He argues that California defendants cannot show

that they have been denied equal protection under Batson because

of the California Supreme Court’s holding. Arg. I at Pet. 11-16.

Respondent disagrees.

Initially, this Court should reject, as procedurally barred,

petitioner’s claim of federal constitutional error involving the rights

to a fair trial and to equal protection of the laws. In making his

objection, petitioner’s counsel said, "At this time we'd like to make

a motion under People v. Wheeler on the basis of the systematic

exclusion of two different minority groups, blacks and also

Mexicans, which my client is Mexican, himself." (RT 3867.) The

defense did not invoke equal protection principles, did not cite

Batson nor any other federal case, and did not object as the trial

2. In Batson v. Kentucky, 476 U.S. 79 (1986), the United States

Supreme Court held that the use of peremptory challenges to exclude

potential jurors on account of their race violates the federal

Constitution and that equal protection principles do apply within the

confines of a particular trial. Batson also established standards for

resolving claims of discrimination in the jury selection process. (Jd.

at 95-98.)

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court considered and applied the Wheeler format. <=qual

protection claims must be presented in the state trial court or will

be deemed waived. This is true even if the defendant presented

all the facts in connection with an objection on other grounds, if he

has failed to bring the equal protection claim to the attention of

the court. Picard v. Connor, 404 U.S. 270, 277-78 (1971); Holland

v. Illinois, 493 U.S. 474, 480, 482-83 (1990); see also People v.

Garceau, 6 Cal.4th 140, 173 (1993); People v. McPeters, 2 Cal.4th

1148, 1174 (1992); cf. Teague v. Lane, 489 U.S. 288, 298 (1989).

Therefore, petitioner’s specific reliance on the representative cross-

section rule and Wheeler, coupled with his failure to suggest an

equal protection and/or Batson basis for his objection, preclude

him from raising independent federal grounds for his objection at

this time. At any rate, petitioner’s equal protection claim lacks

merit and should be rejected because, as discussed below, the trial

court’s finding that there was no improper use of the peremptory

challenges exercised by the prosecutor is supported by the record.

In Purkett v. Elam, 514 U.S. 765 (1995), this Court

recently explained its Batson jurisprudence:

... [O]nce the opponent of a peremptory challenge

has made out a prima facie case of racial discrimination

(step 1), the burden of production shifts to the proponent

of the strike to come forward with a race-neutral

explanation (step 2). If a race neutral explanation is

tendered, the trial court must then decide (step 3)

whether the opponent of the strike has proved

purposeful racial discrimination. [Citations.]

Id. at 766-67.

Petitioner argues that the California Supreme Court’s

opinion in the instant case "essentially vitiates step 3 of the Purkett

standard" by permitting California trial courts to ignore factors

which show that a prosecutor has excluded Black and Hispanic

3. People v. Wheeler, 22 Cal.3d 258 (1978).

jurors allegedly because of responses they gave, but has permitted

White jurors with the same responses to serve. Pet. 14. Petitioner

is mistaken.

This Court in Batson v. Kentucky held:

Once the defendant makes a prima facie showing,

the burden shifts to the State to come forward with a

neutral explanation for challenging [B]lack jurors. .. .

[T]he prosecutor’s explanation need not rise to the level

justifying exercise of a challenge for cause. [Citations.]

Id. at 97.

The prosecutor therefore must articulate a neutral

explanation related to the particular case to be tried.

[Footnote omitted.] The trial court then will have the

duty to determine if the defendant has established

purposeful discrimination. [Footnote omitted.]

Id. at 98.

The prosecutor’s reasons must be "clear and reasonably specific’

and must provide "legitimate reasons for exercising the challenges."

Id. at 98, n. 20.

Since the trial judge’s findings in the context under

consideration here largely will turn on evaluation of

credibility, a reviewing court ordinarily should give those

findings great deference. [Citation.]

Id. at n. 21.

The California Supreme Court reviewed the voir dire in

light of these requirements and found:

With these standards in mind, we conclude that the

instant trial court’s ruling satisfies Wheeler/Batson

standards. Certain aspects of the trial court’s findings

were neither necessary nor relevant, since a Wheeler

violation does not require "systematic" discrimination

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[citation] and is not negated simply because both sides

have dismissed minority jurors or because the final jury

is "representative." However, after observing the relevant

voir dire explanations, the court also found in effect that

the reasons offered for each individual suspect excusal,

including those of panelists Barber, Campos, and

Nevarez, were both genuine and _ acceptably

nondiscriminatory.

The record discloses no basis for suspicion that the

court’s effort to evaluate the prosecutor’s good faith in

this regard was anything other than "sincere and

reasoned." [Citation.] Hence, if the responses given by

the individual excused panelists support the court’s

findings, we must accept them.

People v. Arias, 13 Cal.4th at 137-38.

In People v. Johnson, 47 Cal.3d 1194 (1989), the

California Supreme Court found that an experienced trial court

judge, who had seen and heard the entire voir dire proceeding by

which the defendant’s jury was selected, was sensitive to the

manner in which peremptory challenges were used and,

accordingly, properly found no improper use of the peremptory

challenge by the prosecutor. "Under these circumstances we see

no good reason to second-guess [the trial court’s] factual

determination." Jd. at 1221. The Johnson Court further noted

that, "if we [the California Supreme Court] cannot trust trial courts

to do their job fairly, we might as well close up shop... ." Jd. at

1219, citing People v. Trevino, 39 Cal.3d 667, 704, n. 4. (1985)

(Kaus, J., dissenting).

Further, the use of comparative analysis to evaluate the

bona fides of the prosecutor’s peremptory challenges does not take

into account the variety of factors and considerations that go into

a lawyer’s decision to select certain jurors while challenging others

that appear to be similar. In its disapproval of People v. Trevino,

39 Cal.3d 667, the California Supreme Court in People v. Johnson,

47 Cal.3d 1194, stated that comparisons are one-sided since they

ignore the characteristics of the other jurors against whom the

prosecutor also exercised peremptory challenges. Furthermore, it

is unrealistic to expect a trial judge to make such a detailed review

mid-trial or during a two-month voir dire. Jd. at 1220.

The Johnson Court further stated:

Trial lawyers recognize that it is a combination of

factors rather than any single one which often leads to

the exercise of a peremptory challenge. In addition, the

particular combination or mix of jurors which a lawyer

seeks may, and often does, change as certain jurors are

removed or seated in the jury box. It may be acceptable,

for example, to have one juror with a particular point of

view but unacceptable to have more than one with that

view. If the panel as seated appears to contain a

sufficient number of jurors who appear strong-willed and

favorable to a lawyer’s position, the lawyer might be

satisfied with a jury that includes one or more passive or

timid jurors. However, if one or more of the supposed

favorable or strong jurors is excused for cause or

peremptory challenge and the replacement jurors appear

to be passive or timid types, it would not be unusual or

unreasonable for the lawyer to peremptorily challenge

one of these apparently less favorable jurors even though

other similar types remain. These same considerations

apply when considering the age, education, training,

employment, prior jury service, and experience of the

prospective jurors.

It is also common knowledge among trial lawyers

that the same factors used in evaluating a juror may be

given different weight depending on the number of

peremptory challenges the lawyer has at the time of the

exercise of the particular challenge and the number of

challenges remaining with the other side. Near the end

of the voir dire process a lawyer will naturally be more

cautious about ‘spending’ his increasingly precious

peremptory challenges. Thus at the beginning of voir

dire the lawyer may exercise his challenges freely against

a person who has had a minor adverse police contact and

later be more hesitant with his challenges on that ground

for fear that if he exhausts them too soon, he may be

forced to go to trial with a juror who exhibits an even

stronger bias. Moreover, as the number of challenges

decreases, a lawyer necessarily evaluates whether the

prospective jurors remaining in the courtroom appear to

be better or worse than those who are seated. If they

appear better, he may elect to excuse a previously passed

juror. hoping to draw an even better juror from the

remaining panel.

It should be apparent, therefore, that the very

dynamics of the jury selection process make it difficult, if

not impossible, on a cold record, to evaluate or compare

the peremptory challenge of one juror with the retention

of another juror which on paper appears to be

substantially similar. The dissent’s attempt to make such

an analysis of the prosecutor’s use of his peremptory

challenges is highly speculative and less reliable than the

determination made by the trial judge who witnessed the

process by which the defendant’s jury was selected. It is

therefore with good reason that we and the United States

Supreme Court give great deference to the trial court’s

determination that the use of peremptory challenges was

not for an improper or class bias purpose. As stated in

Batson: "Since the trial judge’s findings in the context

under consideration here largely will turn on evaluation

of credibility, a reviewing court ordinarily should give

those findings great deference." [Citation.]

People v. Johnson, 47 Cal.3d at 1220-21.

The California Supreme Court’s deference to the trial

court was proper under Batson. As a practical matter, a trial

judge, in determining whether a prospective juror has been

challenged by the prosecution on a racial basis in violation of the

United States Constitution, see Batson, supra, has an obligation to

weigh the evidence and assess the credibility of witnesses. In short,

10

the trial judge is a factfinder. If from the evidence he believes that

the prosecutor exercised peremptory strikes to exclude

venirepersons based upon racial considerations, it is his duty to so

find and to provide appropriate relief. This Court and the State

Courts of Appeal are principally reviewing courts. They should not

substitute their judgments of witnesses’ credibility and evidentiary

weight for those of the factfinder, but should affirm those

judgments whenever the record discloses sufficient evidence in

their support.

A prosecutor’s statement alone might not be completely

dispositive. The trial judge must gauge his credibility as in any

other fact finding enterprise. Further, interjuror comparisons may

be probative on the issue, but should be advanced before the trial

court.*

4. Petitioner relies upon United States v. Chinchilla, 874 F.2d 695,

699 (9th Cir. 1989) in arguing that any disparate treatment between

jurors is strongly suggestive of bias. Pet. 12. Any reliance upon this

9th Circuit holding is not dispositive in this case:

... The Supremacy Clause demands that state law yield to

federal law, but neither federal supremacy nor any other

principle of federal law requires that a state court’s

interpretation of federal law give way to a (lower) federal

court’s interpretation. In our federal system, a state trial

court’s interpretation of federal law is no less authoritative

than that of the federal court of appeals in whose circuit

the trial court is located.

Lockhart v. Fretwell, 506 U.S. 364 (1993) (Thomas, J., concurring);

Burks v. Borg, 27 F.3d 1424, 1428 (9th Cir. 1994); Arizonians for

Official English vy. Arizona, __U.S._, 117 S.Ct. 1055, 1064, fn. 11

(1997); see also People v. Dunn, 40 Cal.App.4th 1039, 1050-51 (1995).

Furthermore, Chinchilla is hardly persuasive authority.

Unlike the California Supreme Court’s decision in Johnson, the

Chinchilla opinion offers no analysis to support its comparative

analysis approach. As authority, it relies on the Califnia Supreme

Court’s opinion in People v. Hall, 35 Cal.3d 168 (1983). To the extent

Hall actually relied upon any comparative analysis, it was essentially

disavowed by the California Supreme Court in People v. Johnson, 47

Cal.3d at 1218-22.

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11

A reviewing court should reverse a trial court’s findings

only when they are not supported by sufficient evidence. If the

trial judge was not urged to make, and did not make, a finding

based upon a comparison analysis in deciding the issue whether

the prosecutor’s neutral explanations were rebutted or impeached

at the Wheeler/Batson hearing with evidence that unchallenged

veniremen also possessed the same purporiedly undesirable

characteristics, this Court should not undertake this fact-finding

task or reconsider this circumstance in reviewing the trial judge’s

findings. .

The California Supreme Court generally adhered to these

principles in reviewing petitioner’s challenges to voir dire. It

properly concluded that the "instant trial court’s ruling satisfies

Wheeler/Batson standards." People v. Arias, 13 Cal.4th at 137.

In summary, California prosecutors and trial judges have

been leaders in the effort to eliminate group bias as a factor in

criminal jury trials. That is evident in the extensive exposition of

reasons which the prosecutor provided in support of his challenges

in this case. For each one of the three prospective jurors whose

exclusion is in issue here, the prosecutor gave a large number of

neutral reasons for exercising a challenge, and at least several of

those reasons are objectively verifiable from the written record.

No further comparative review was requested or argued. We

respectfully submit that petitioner’s complaint is nothing more than

an invitation for this Court to "micro-manage" the jury selection

process in California. People v. Johnson, 47 Cal.4th at 1219-22.

We submit that it would be totally inappropriate for this Court to

substitute itself as the factfinder on the credibility and bona fides

of the trial prosecutor.

12

Il.

THE TRIAL COURT PROPERLY DENIED

PETITIONER’S MOTIONS FOR SEPARATE JURIES

AT THE GUILT- AND PENALTY-PHASE TRIALS

Petitioner further contends that the trial court’s denial of

his motions for separate juries to adjudicate the guilt phase and

the penalty phase at trial violated his right to an impartial jury

under the Sixth, Eighth and Fourteenth Amendments. Arg. II at

Pet. 17-21. He bases this contention on the argument that the

jury, which had just convicted him of capital murder, could not

impartially determine the truth of prior unadjudicated and violent

criminal acts and the weight to be given such aggravating factors

in the jury’s sentencing determination.

Both the California Supreme Court and this Court have

already rejected this argument in numerous cases, despite

petitioner’s request to disregard them. Buchanan v. Kentucky, 483

U.S. 402, 414-21 (1987); People v. Bacigalupo, 1 Cal.4th 103, 135-36

(1991) (judgment vacated and remanded on other grounds,

Bacigalupo v. California 506 U.S. _, 121 L.Ed.2d 5 (1992)); People

v. Gordon, 3 Cal.4th 195, 252 (1992); People v. Espinoza, 3 Cal.4th

806, 827 (1992); People v. Johnson, 3 Cal.4th 1183, 1212-13 (1992);

People v. Balderas, 41 Cal.3d 144, 204 (i985).

We cannot agree. Even if a separate jury were

empaneled to decide the penalty, it would be entitled to

hear, in aggravation or mitigation, "[t]he circumstances of

the crime of which the defendant was convicted in the

present proceeding," including "the existence of any

special circumstance found true" at the guilt trial. (§

190.3, subd. (a).) Under these circumstances, the strong

legislative preference for a unitary jury outweighs any

"supposed disadvantage" to defendant in the single-jury

process. (See § 190.4, subd. (c).) [Citations.]

Id. at 204.

mses Matibiahess

13

Accordingly, petitioner’s argument is contrary to this

Court’s holding and should be rejected.

14

Ill.

PETITIONER LACKS STANDING TO CLAIM THAT THE

CALIFORNIA STATUTORY SCHEME DOES NOT

ADEQUATELY NARROW THE CATEGORIES OF DEATH-

ELIGIBLE MURDERERS NOR DOES HE PRESENT A CASE

OR CONTROVERSY FOR THIS COURT'S REVIEW SINCE

PETITIONER WAS NOT SENTENCED TO DEATH UNDER

THE CURRENT CALIFORNIA LAW AND SINCE THE STATE

LAW APPLIED IN PETITIONER’S CASE ACTUALLY APPLIES

TO A NARROWER CLASS OF MURDERERS

Petitioner further requests this court to review the

adequacy of California’s capital punishment law under the Eighth

and Fourteenth Amendments. He argues that the California law

does not genuinely narrow the class of persons eligible for the

death penalty because it is so broad as to include "nearly every first

degree murder." Arg. III at Pet. 21-29. However, review is not

appropriate in this case since petitioner was not convicted and

sentenced to death under the California law currently in effect.

Indeed, he was actually tried under a law that is more selective of

California murderers than the current statutory scheme described

in the petition.*

As this Court is aware, under California law, a murderer

is Only death-penaity eligible when the murderer is convicted of

first degree murder and the jury finds a special circumstance true.

Petitioner asserts that the special circumstances that trigger

eligibility "taken together . . . cover virtually all first degree

murders." Pet. at 22 [emphasis added]. He argues that the

drafters of California law intended the statute to apply to every

murderer and that the "felony murder" special circumstance in

particular fails to narrow_the category of eligible felony-murderers.

5. Respondent in no way concedes that the current California law

fails Eighth Amendment eligibility standards. However, petitioner

was not sentenced under that law.

15

Petitioner’s own case is fatal to his claim. Petitioner was

not tried and sentenced under the law he now attacks. Rather, his

case was decided under a state law no longer in effect.

The problem with petitioner’s argument is that an "intent

to kill" was required for the felony murder special circumstances

in his case. Although California law no longer requires an "intent

to kill" for a felony murder special circumstance, such a mental

state was required at the time petitioner murdered John Waltrip.

Pet., App. A at 21-22. Thus, the felony murder special

circumstance in petitioner’s case did not simply duplicate the

elements of first degree felony murder in California. Once the jury

convicted petitioner of first degree murder, it was also necessary

for the jury to find that petitioner intended to kill John Waltrip

when he robbed him in order for petitioner to be death penalty

eligible.

This Court has long settled that an intentional firsi degree

felony murderer is an appropriate candidate for the death penalty

under the Eighth Amendment. See, e.g. Tison v. Arizona, 481 U.S.

137, 157-58 (1987). Furthermore, there is nothing improper under

Eighth Amendment jurisprudence for a jury to consider this factor

in deciding the appropriate sentence. Tuilaepa v. California, 512

US. __, 114 S.Ct. 2630, 2637 (1994). Whatever complaint

petitioner has about the current California death penalty law, it is

not a complaint that applies to his case since he was not tried

under that law. His petition on this question should be denied.

See, e.g. Sochor v. Florida, 504 U.S. 527, 537 (1992); Arave v.

Creech, 507 U.S. 463, 476-78 (1993); Walton v. Arizona, 497 US.

639, 655-56 (1990).

16

CONCLUSION

Accordingly, for the reasons stated, respondent

respectfully requests that the petition for writ of certiorari be

denied.

Dated: May 2, 1997.

AEA:Ims

Respectfully submitted,

DANIEL E. LUNGREN

Attorney General

GEORGE WILLIAMSON

Chief Assistant AttorOney General

ROBERT R. ANDERSON

Senior Assistant Attorney General

MARGARET VENTURI

Supervising Deputy Attorney General

WARD A. CAMPBELL, Assistant

Suprevising Attorney General

ALISON ELLE ALEM AN

Deputy Attorney General

California Bar No. 117566

Counsel of Recora

Counsel for Respondent

SA96XU0005