CELESTINO MARK CARLOS, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; THE PEOPLE, Real Party in Interest.
L.A. 31487
Supreme Court of California
Dec. 12, 1983.
January 19, 1984
35 Cal.3d 131
Wilbur F. Littlefield, Public Defender, Laurence M. Sarnoff, Dennis A. Fischer, Richard Santwier and Morton Borenstein, Deputy Public Defenders, for Petitioner.
No appearance for Respondent.
John K. Van de Kamp, District Attorney, Harry B. Sondheim, Donald J. Kaplan and Maurice H. Oppenheim, Deputy District Attorneys, for Real Party in Interest.
George Deukmejian, Attorney General, Robert H. Philibosian, Chief Assistant Attorney General, S. Clark Moore, Assistant Attorney General, Norman H. Sokolow and Howard J. Schwab, Deputy Attorneys General, as Amici Curiae on behalf of Real Party in Interest, upon the request of the Supreme Court.
OPINION
BROUSSARD, J.-The question before us is whether a defendant can be charged or convicted of murder with the special circumstance of felony murder under the 1978 death penalty initiative if he did not intend to kill or to aid in the commission of a killing. We approach that issue with due recognition of the importance of the matter. A finding of murder with special circumstances requires the trier of fact to choose between only two alternatives-death or life imprisonment without possibility of parole-the most severe punishments permitted under our law. The infliction of either punishment upon a person who did not intend a murder, but only some lesser crime, poses grave moral and legal issues. The ethical principles that punishment should be proportionate to individual guilt, and that a less culpable offender should not be punished more severely than a more culpable offender, permeate the criminal law and underlie constitutional protections.
The question involves the interpretation of two provisions of
In resolving the uncertainties of the statutory language, we have concluded that the 1978 initiative should be construed to require an intent to kill or to aid in a killing as an element of the felony murder special circumstance. To reach that conclusion, we first examined the language of the initiative and the manner in which it was presented to the voters; we found that the language and presentation were uncertain, but both tended to support an intent to kill requirement. We next considered applicable principles of statutory construction. One such principle, the general rule that ambiguities in penal statutes are resolved in favor of the defendant, acquires much greater
In the present case, defendant Celestino Carlos seeks a writ of prohibition to bar his trial on a special circumstance allegation on the ground that the evidence failed to show that he intended to kill or to aid a killing.4 According to the evidence presented at the preliminary hearing, defendant and Manuel Perez robbed a grocery store. Upon leaving the store, they were confronted by Gerald Slagle, a deputy sheriff. Slagle‘s daughter, the murder victim, was fatally wounded in a gun battle between Slagle and Perez. Defendant, however, left the scene before the shooting started, retrieved his car, and returned to help Perez escape. Since nothing in this evidence suggests that defendant intended a killing, the writ should issue barring his trial on the special circumstance allegation.
I. Proceedings in the present case.
Defendant and Manuel Perez were arrested for robbery and murder.5 Following a preliminary hearing, the prosecutor filed a five-count information against defendant. Count I, the only count relevant to the present proceeding, charged defendant with the murder of Jennifer Slagle, and alleged as a
On November 17, 1979, two men stopped at the entrance of a Safeway store in La Crescenta. Before entering the store, one man, identified as defendant, pulled a ski mask over his face. At the same time, Gerald Slagle, an off-duty reserve deputy sheriff, was walking toward the Safeway store with his three-year-old daughter, Jennifer. He saw the two men walk past him and noticed that just before they entered the store, one man pulled a ski mask over his face and drew a gun. Concluding that a robbery was about to occur, Slagle took his daughter, crouched down behind a car in the parking lot, and waited for the men to emerge.
Upon entering the store, defendant, the man in the ski mask, approached a grocery clerk and directed her at gunpoint to put money in a paper bag. Perez, the unmasked robber, approached another clerk with what appeared to be a sawed-off shotgun. After the clerks put money into paper bags, defendants took the bags and left the store.
When the two robbers reached an area clear of bystanders, Slagle confronted them. While defendant fled, Perez aimed his gun at Slagle. Slagle fired two shots at Perez, wounding him. Perez then shot at Slagle, who ducked behind the car, and the two men continued to exchange fire. At some point in the shooting Jennifer Slagle stood up and was hit by two bullet fragments. Shortly thereafter, defendant arrived with a car; Perez got in and the two men drove off.
Jennifer Slagle died from a gunshot wound to the head. A chemical analysis of a bullet fragment suggested that the fatal shot probably came from Slagle‘s gun.
Contending that the foregoing evidence did not show that he intended to kill or to aid in a killing, defendant moved pursuant to
(A) The felony-murder rule in California prior to the 1978 initiative.
Apart from its effect in capital cases, the felony-murder rule in California serves two purposes. First, whenever a killing occurs as a direct causal result of the commission or attempt to commit a felony inherently dangerous to human life, the rule classifies the killing as murder instead of manslaughter. (See People v. Nichols (1970) 3 Cal.3d 150, 163; People v. Phillips (1966) 64 Cal.2d 574, 582.) It thus dispenses with the need to prove malice aforethought. (People v. Dillon (1983) 34 Cal.3d 441, 472-476.) Second, whenever the felony is one listed in section 189, the rule classifies the murder as one of the first degree. In this context, felony murder substitutes for proof of premeditation. (See People v. Cantrell (1973) 8 Cal.3d 672, 688.)
California law prior to People v. Anderson (1972) 6 Cal.3d 628 granted a penalty jury uncontrolled discretion to determine whether a defendant convicted of first degree murder should be sentenced to death or life imprisonment. It drew no distinction between felony murders and other first degree murders. When the 1977 Legislature set out to restore the death penalty in California, however, it faced the task of complying with United States Supreme Court decisions (Furman v. Georgia (1972) 408 U.S. 238; Gregg v. Georgia (1976) 428 U.S. 153) which required a state to establish standards to guide the discretion of the jury. (Gregg, supra, 428 U.S. at p. 189 (opn. of Stewart, Powell and Stevens, JJ.).) The Legislature responded by limiting the punishments of death and life imprisonment without possibility of parole to cases presenting one or more “special circumstances.” Absent a finding of special circumstances, the maximum penalty provided is life imprisonment with possibility of parole.
In formulating its list of special circumstances, the 1977 Legislature decided in essence that a murder which qualified as a first degree murder both because it was a deliberate, premeditated killing and because it fell under the felony-murder doctrine was the kind of aggravated murder which might warrant the death penalty. It therefore provided that a first degree murder conviction should be punished by death or life imprisonment without possibility of parole if “[t]he murder was willful, deliberate, and premeditated and was committed during the commission or attempted commission of any
Our decision in People v. Green (1980) 27 Cal.3d 1 explained the felony murder special circumstance of the 1977 law: “[W]e infer that the purpose of the Legislature was to comply insofar as possible with what it understood to be the mandate of Furman and Gregg et al. At the very least, therefore, the Legislature must have intended that each special circumstance provide a rational basis for distinguishing between those murderers who deserve to be considered for the death penalty and those who do not. The Legislature declared that such a distinction could be drawn, inter alia, when the defendant committed a ‘willful, deliberate and premeditated’ murder ‘during the commission’ of a robbery or other listed felony. (Former
In short, the 1977 law viewed felony murder as a special circumstance only in the case of a defendant, physically present at the crime scene, who intentionally commits or aids a deliberate and premeditated murder. Our decision in Green implicitly acknowledged classification of such felony murders to be a proper exercise of the Legislature‘s power to distinguish between those defendants whose conduct might warrant the death penalty and other defendants, equally guilty of first degree murder, for whom that penalty would be excessive.
(B) The text of the 1978 initiative.
The 1978 initiative, enacted by the voters at the November election of that year, completely rewrote the special circumstance provision of the 1977 law. In place of the six narrowly defined circumstances of the earlier
The provisions in the 1977 law requiring physical presence and intention to cause death also disappear from the 1978 version. In their place appears a new section (
In paragraph 17 of the new enactment, the felony murder special circumstance, the absence of any express requirement of intentionality suggests that the circumstance applies to a defendant whether or not he intended to kill. That inference gains force from the fact that 10 of the 18 remaining special circumstances expressly require an intentional killing, implying that the omission of that requirement in paragraph 17 was deliberate.7
Upon closer look, however, it becomes clear that a construction of paragraph 17 without an intent requirement would have anomalous results. Five
There is, however, no reason to believe that the drafters or voters intended to distinguish between deaths which occurred during the course of section 189 felonies and those in nonsection 189 felonies; the two classes of felonies are interspersed randomly in paragraph 17. And the result of such a distinction would be difficult to defend. A defendant who killed unintentionally during a robbery or rape could be convicted of first degree murder with special circumstances and executed, while one who killed unintentionally during a kidnaping for robbery or a forcible sodomy could not be convicted of first degree murder and thus could not be executed.
The difficulties created by reading paragraph 17 without an intentionality requirement increase when we consider subdivision (b) of section 190.2. Although that subdivision apparently was added to govern liability of accomplices, it states the liability of both accomplices and principals. “Every person whether or not the actual killer” shall suffer death or life imprisonment without possibility of parole if he is “found guilty of intentionally
With regard to most of the listed special circumstances, the function of subdivision (b) is clear: it renders the accomplice equally liable as the principal if the accomplice “intentionally” aided in the murder. With respect to paragraph 17, however, its function is more obscure. In the first place, paragraph 17, alone of the listed paragraphs, already contains language equating the liability of principal and accomplice. In addition, the requirement that the accomplice “intentionally” aid in the commission of a murder is inherently ambiguous when applied to a felony murder, for it could mean either that the accomplice must intentionally aid in a killing, or that he need only intentionally aid the commission of the underlying felony. And because paragraph 17 includes felonies not listed in section 189, the ambiguities mount. Must the accomplice to a nonsection 189 felony share the principal‘s intent to kill, or need he only intend to aid the underlying felony?10
In resolving these ambiguities, we arrive at the following conclusion: With regard to section 190.2 generally, it is reasonably clear that subdivision (b) imposes an intent to kill requirement before an accomplice can be found guilty of murder with special circumstances under most of the special circumstance paragraphs. The subdivision further equates the liability of the accomplice to that of the actual killer, thus implying an intentionality requirement for the actual killer-a requirement stated expressly in some, but not all, of the paragraphs in question.
With regard to felony murder, the impact of subdivision (b) is less clear. It almost certainly imposes an intent to kill requirement for an accomplice to any nonsection 189 murder, since the actual killer in such a case could not be found guilty of murder with special circumstances absent such an intent. Since subdivision (b) draws no distinction between section 189 murders and those not encompassed in that section, and seeks to avoid any distinction between accomplices and actual killers, a uniform and sensible interpretation of the subdivision would read it as imposing an intent to kill requirement for the accomplice to any felony murder, and by implication such a requirement for the actual killer himself.
(C) History and purpose of the 1978 initiative.
In construing an initiative measure, the California courts have often referred to the analysis and arguments in the voters’ pamphlet as an aid to ascertaining the intention of the framers and the electorate.11 (Carter v. Com. on Qualifications, etc. (1939) 14 Cal.2d 179, 185; see White v. Davis (1975) 13 Cal.3d 757, 775, fn. 11 and cases there cited.) In the present instance, the analysis by the Legislative Analyst of the 1978 death penalty initiative (Prop. 7 Nov. 1978 ballot) merely reiterates an abridged version of the initiative, and extends no assistance as to the meaning of any ambiguous terms. The argument advanced by the proponents, however, offers some clues.
The 1978 initiative repealed provisions of the 1977 act requiring physical presence and a wilful, deliberate, and premeditated killing before the jury could find a felony murder special circumstance. The deletion of an express statutory provision implies an intent to change the substantive law (see, e.g., Clements v. T. R. Bechtel Co. (1954) 43 Cal.2d 227, 231-232); the repeal of language requiring that the defendant act “with the intent to cause death” (former
The ballot arguments, however, communicated a contrary purpose. The proponents’ initial argument referred obliquely to eliminating the physical presence requirement, but made no reference to eliminating the intent to
The opponents of the initiative charged that Proposition 7 could be construed to impose the death penalty for an unintended killing. They claimed that “a man or woman could be sentenced to die for lending another person a screwdriver to use in a burglary, if the other person accidentally killed someone during the burglary. Even if the man or woman was not present during the burglary, had no intention that anyone be killed or hurt, in fact urged the burglar not to take a weapon along, they could still be sentenced to die.”
In rebuttal to that charge, the proponents responded: “ALRIGHT, LET‘S TALK ABOUT FALSE ADVERTISING. [¶] The opposition maintains if someone were to lend a screwdriver to his neighbor and the neighbor used it to commit a murder, the poor lender could get the death penalty, even though ‘he had NO INTENTION that anyone be killed.’ [¶] Please turn back and read Section 6b [now
This rebuttal is our best evidence of the intent of the drafters and the voters. In the hypothetical case it discusses, the “poor lender” had intentionally aided in the commission of a burglary, a section 189 felony. Thus, in proclaiming that the term “intentionally aiding... in the commission of murder” in subdivision (b) bars imposition of the death penalty upon the lender, the proponents are necessarily construing that term to require an intent to kill, not merely an intent to commit the underlying felony. In short, it apparently was the intent of the framers--an intent which they emphati-
The hypothetical case focused on the liability of the accomplice; the unfortunate “other person” who “accidentally killed someone during a burglary” received only the briefest mention. The rebuttal, however, expressly derived its intentionality requirement from section 6b of the initiative, and if the voter turned for clarification to the specific language of that section, he would have found that it was not limited to accomplices but applied to “[e]very person” including “the actual killer.”
The adoption of a law to permit infliction of the death penalty upon an accidental killer would be a momentous step, raising grave moral questions. Nothing in the ballot arguments suggested that the framers intended to take such a step; certainly nothing communicated any such intention to the voters.13 We conclude that the history of the initiative, as well as its wording, supports a construction limiting the felony murder special circumstances to persons who intend to kill or aid in a killing.
(D) Interpretation of penal statutes.
In ex parte Rosenheim (1890) 83 Cal. 388, 391, the court explained that “[w]hile it is true, the rule of the common law that penal statutes are to be strictly construed has been abrogated by the code, which provides that ‘all its provisions are to be construed according to the fair import of their terms, with a view to effect its object and promote justice,’ it is also true that the defendant is entitled to the benefit of every reasonable doubt, whether it arise out of a question of fact, or as to the true interpretation of words or the construction of language used in a statute ....” The California courts thereafter have adhered to the rule that a reasonable doubt concerning the meaning of a penal statute should be resolved in favor of the defendant. Thus, in Keeler v. Superior Court (1970) 2 Cal.3d 619, 631, we declared that “[i]t is the policy of this state to construe a penal statute as favorably to the defendant as its language and the circumstances of its application may reasonably permit ....” In construing a different provision of the same 1978 initiative before us in the present case, People v. Spears (1983) 33 Cal.3d 279, 283 reiterated “the rule that a defendant is entitled to the benefit of any reasonable doubt as to the construction of a penal law.”
That rule of construction acquires heightened force in felony-murder cases. Courts and commentators have consistently criticized the felony-murder doctrine as unjust, imposing punishment with little regard for culpability. (See People v. Phillips, supra, 64 Cal.2d 574, 582-583; Fletcher, Reflections on Felony-Murder (1981) 12 Sw.U.L.Rev. 413.) They also question its utility. As one commentator observed, “[i]t may be that the rule is unnecessary in almost all cases in which it is applied, that is to say, that conviction in those cases can be predicated on the normal rules as to murder and as to accomplice liability. In the small residuum of cases, there may be substantial question whether the rule reaches a rational result or does not at least distract attention from more relevant criteria.” (Fn. omitted.) (Packer, The Case for Revision of the Penal Code (1961) 13 Stan.L.Rev. 252, 259.)
In People v. Satchell (1971) 6 Cal.3d 28, Justice Sullivan summarized the judicial view of the felony-murder rule: “In the case of People v. Washington (1965) 62 Cal.2d 777, at page 783, this court struck the keynote which has guided all our subsequent consideration of cases involving the felony-murder doctrine. Acknowledging the substantial body of legal scholarship which has concluded that that doctrine not only ‘erodes the relation between criminal liability and moral culpability’ but also is usually unnecessary for conviction, we went on to say of it: ‘Although it is the law in this state (
The felony-murder rule in the cited cases served to distinguish among felons, punishing as murderers those who, although intending only some lesser felony, encountered an unintended killing. The rule in the present case serves a new purpose: to determine which murderers deserve death or life imprisonment without possibility of parole. In this context the cited criticisms acquire renewed strength. To impose a penalty of death or perpetual confinement for a killing, without taking account of whether the
Rules of construction resolving doubts in favor of the defendant and limiting the application of the felony-murder rule come into play only when the language and purpose of the enactment are uncertain. We have already seen that the language of the 1978 initiative and the purpose of its enactment as explained to the voters indicates, but does not compel, the conclusion that intent to kill is required. In such a setting the use of these rules of construction is appropriate, and serves to reinforce our view that the statute does not permit punishment of an unintentional felony murder by death or life imprisonment without possibility of parole.
(E) Interpretation to avoid questions of constitutional validity.
Both the United States Supreme Court and the California courts have pointed out on numerous occasions that a court, when faced with an ambiguous statute that raises serious constitutional questions, should endeavor to construe the statute in a manner which avoids any doubt concerning its validity.14 (See, e.g., Lynch v. Overholser (1962) 369 U.S. 705, 710-711; United States ex rel. Atty. Gen. v. Delaware & Hudson Co. (1909) 213 U.S. 366, 407-408; People v. Davis (1981) 29 Cal.3d 814, 829; Department of Corrections v. Workers’ Comp. Appeals Bd. (1979) 23 Cal.3d 197, 207; Kramer v. Municipal Court (1975) 49 Cal.App.3d 418, 424; White v. Valenta (1965) 234 Cal.App.2d 243, 249.) In United States v. Delaware & Hudson Co., supra, the Supreme Court explained the scope and the rationale of this established canon of constitutional adjudication: “It is elementary when the constitutionality of a statute is assailed, if the statute be reasonably susceptible of two interpretations, by one of which it would be unconstitutional and by the other valid, it is our plain duty to adopt that construction which will save the statute from constitutional infirmity. [Citation.] And unless this rule be considered as meaning that our duty is to first decide that a statute is unconstitutional and then proceed to hold that such ruling was
The 1978 initiative, if construed to eliminate any intent to kill requirement for the felony murder special circumstance, would encounter substantial constitutional problems. As we will explain, application of the statute as so construed to accomplices who did not intend to kill would in many cases violate the federal cruel and unusual punishment clause.15 Its application to an actual killer who did not intend to kill would present a close and unsettled constitutional question. In addition, a statutory classification which imposed a minimum penalty of death or imprisonment without parole upon persons who did not intend to kill, while permitting some deliberate killers to escape with a sentence of life with possibility of parole, would raise further constitutional questions: whether the statute complies with Supreme Court decisions requiring the screening of murder cases to select out those most deserving of enhanced punishment, and whether its classification conforms to constitutional standards of equal protection.
The United States Supreme Court decision in Enmund v. Florida (1982) 458 U.S. 782, guides our analysis of the constitutionality of the 1978 initiative under the federal Constitution. The facts of that case closely resemble the instant case. While Enmund waited in a car, his two codefendants approached the residence of Thomas and Eunice Kersey. When they demanded money from Thomas, Eunice shot and wounded one of the codefendants. The codefendants then killed the Kerseys, took some money, and fled with Enmund in the car. Enmund was convicted of first degree murder with the aggravating circumstance that the felony was committed while Enmund was engaged in or an accomplice to robbery. He was then sentenced to death. The United States Supreme Court held that the death sentence violated the cruel and unusual punishment clause of the Eighth Amendment.
In Coker v. Georgia (1977) 433 U.S. 584, the court established the doctrine that “punishment is ‘excessive’ and unconstitutional if it (1) makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering; or (2) is grossly out of proportion
Turning to the question of the purpose of punishment, the court observed that ““[t]he death penalty is said to serve two principal social purposes: retribution and deterrence of capital crimes by prospective offenders” (458 U.S. at p. 798, quoting Gregg v. Georgia, supra, 428 U.S. 153, 183). A death penalty which failed to serve either purpose would be unconstitutional. But the imposition of the death penalty upon one who does not intend to kill, the court said, serves no purpose of deterrence, “for if a person does not intend that life be taken or contemplate that lethal force will be employed by others, the possibility that the death penalty will be imposed for vicarious felony murder will not ‘enter into the cold calculus that precedes the decision to act.‘” (458 U.S. at p. 799.)17 Neither does it serve the purpose of retribution, for that purpose requires punishment proportional to culpability, and “[p]utting Enmund to death to avenge two killings that he did not commit and had no intention of committing or causing does not measurably contribute to the retributive end of ensuring that the criminal gets his just deserts.” (458 U.S. at p. 801.) The court concluded that to impose the death penalty upon a
Although there are factual differences between Enmund and the present case, they are insufficient to distinguish that decision. Enmund waited in the getaway car; defendant participated in the robbery. Defendant was armed; we do not know if Enmund was. But the similarities between the two cases are controlling. Defendant did not kill, did not attempt to kill, and was not present at the time of the killing. Nothing in the record suggests that he intended the death of Jennifer Slagle or any other person. The most that could be said concerning defendant‘s culpability for Jennifer‘s death is that defendant knew his partner was armed, and may have contemplated that in an unexpected confrontation Perez would shoot and someone might be killed. The same can be said of Enmund; yet his knowledge that his codefendants were armed and prepared to kill did not prevent the United States Supreme Court from concluding that imposition of the death penalty on Enmund was unconstitutional.
Enmund v. Florida makes clear that an accomplice who neither intends to kill nor contemplates the use of lethal force cannot be sentenced to death. It necessarily follows that the evidence presented at defendant Carlos’ preliminary hearing is insufficient to hold him for trial on a capital charge. The district attorney tacitly acknowledges this constitutional barrier, and has informed us that he will not ask for the death penalty in the Carlos trial.
The holding in Enmund was carefully limited to the case of a defendant who did not kill, attempt to kill, or contemplate that life would be taken. The reasoning of the case, however, raises the question whether the death penalty can be imposed on anyone who did not intend or contemplate a killing, even the actual killer. The court‘s analysis of the deterrent and retributive purpose of the death penalty focuses on the subjective intent and moral culpability of the defendant, and in this context there is no basis to distinguish the killer from his accomplice. The threat of capital punishment is unlikely to deter an accidental or negligent killing, and in terms of moral responsibility for an unintended homicide, all participants in the underlying felony would seem equally culpable. Consequently, the question whether the felony murder special circumstance can constitutionally be applied to any defendant, including the actual killer, who did not intend or contemplate
Furthermore, a new set of constitutional issues arises when we consider that the 1978 initiative imposes a maximum penalty of life imprisonment with possibility of parole for a wilful and premeditated killing that does not come within any listed special circumstance. If the initiative were construed to impose a penalty of death or life imprisonment without parole for unintended felony murder, it would punish more severely a defendant who did not intend to kill than one who did. Such a distinction would create problems under both the Eighth Amendment and the equal protection clause.
Decisions under the Eighth Amendment have established that a state cannot impose the death penalty for all murders (Woodson v. North Carolina (1976) 428 U.S. 280; Roberts v. Louisiana (1976) 428 U.S. 325), nor give the jury uncontrolled discretion to select which defendants suffer that penalty (Furman v. Georgia, supra, 408 U.S. 238). Instead, it must develop standards to guide the decision of the jury, selecting from among the murder victims those aggravated cases in which the death penalty would be appropriate. “A capital sentencing scheme must provide a ‘meaningful basis for distinguishing the few cases in which [the penalty] is imposed from the many cases in which it is not.‘” (Godfrey v. Georgia (1980) 446 U.S. 420, 427, quoting Furman at p. 313 (White, J., conc.).)
We doubt that a screening device which included those who killed accidentally, while excluding some intentional killers, would meet the United States Supreme Court‘s test. Arguably the California procedure might be saved by the power of the jury to reject the death penalty after finding a felony murder special circumstance on the ground that the mitigating factors (which would include the absence of an intent to kill) outweigh the aggravating factors. (See Jurek v. Texas (1976) 428 U.S. 262.) The jury, however, would still have the power to impose a death sentence in such a case, and even if it rejected that penalty, the defendant would still receive a more severe sentence than the deliberate murderer who committed no underlying felony.
The language from Godfrey v. Georgia indicates that the Eighth Amendment requires a “meaningful basis” (446 U.S. 420, 427),
Even under this stringent standard the state may well be able to justify treating a deliberate felony murder as more serious than a deliberate murder unrelated to a felony. But it is doubtful that it could explain treating an unintended felony murder as an offense more serious than wilful nonfelony murder. As the court explained in Enmund, the state‘s interest in deterrence and retribution does not warrant a death penalty for a defendant who did not intend to kill (see 458 U.S. 782, 801) and it is difficult to conceive of any other interest that might justify such a result.19
We need not decide whether the felony murder special circumstance of the 1978 law, if lacking an intent to kill requirement, would be unconstitutional on its face or as applied. (Enmund makes it clear that imposing the death penalty on accomplices who did not intend or contemplate a killing is unconstitutional, but the other constitutional issues discussed in this opinion remain open questions.) It is sufficient to note that substantial constitutional questions can be avoided by a construction of the enactment to require a showing of intent to kill as an element of the special circumstance. Under established rules of construction, we should adopt that view of the law which steers clear of constitutional obstacles and leaves no doubt of the statute‘s validity.
The district attorney argues that although the constitutional principles may demand an intent to kill requirement before imposing the death penalty, the
Second, the construction proposed by the district attorney does not avoid all constitutional issues. It would still leave some defendants who did not intend to kill with a minimum sentence of life without possibility of parole, while leaving others who killed deliberately with a maximum sentence that permitted parole. The state would still bear the burden of justifying this classification, and it is doubtful whether it could meet that burden.
Finally, as we recently explained in People v. Spears, supra, 33 Cal.3d 279, “the entire procedural scheme for disposition of a charge of special circumstances [under the 1978 initiative] ... ‘is properly restricted to cases involving adults charged with first degree murder and subject to the death penalty.‘” (Pp. 282-283, quoting People v. Davis (1981) 29 Cal.3d 814, 831.) If a defendant is not subject to the death penalty, then under the reasoning of Davis and Spears he is not subject to special circumstance proceedings and cannot be sentenced to life imprisonment without possibility of parole.20
III. Conclusion.
The wording of the initiative, its purpose as explained to the voters, the principle that penal statutes should be construed to give the defendant the benefit of reasonable doubt, and the companion principle that statutes should be construed to avoid substantial questions of their constitutional validity-all unite to support the conclusion that the felony murder special circumstance of the 1978 initiative requires proof that the defendant intended to kill. Specifically, we construe the word “intentionally” in subdivision (b) of section 190.2 to apply to all defendants-actual killers and accomplices
Since the evidence presented at the preliminary hearing in the present case is plainly insufficient to establish reasonable cause to believe defendant intended to kill the victim or any other person, defendant cannot be tried on a felony murder special circumstance allegation. Let a writ of prohibition issue barring respondent court from conducting further proceedings against defendant on the special circumstance allegation in count I of the information.21
Bird, C. J., Mosk, J., Kaus, J., Reynoso, J., and Karesh, J.,* concurred.
RICHARDSON, J.--I respectfully dissent.
The majority, purportedly troubled by “serious constitutional questions” regarding a provision of the 1978 death penalty statute (
1. Defendant‘s Lack of Standing
It seems apparent to me that defendant lacks standing to raise any constitutional challenge which is based on the impropriety of exacting the death penalty for an unintentional felony murder. Defendant does not face the death penalty, and no one contends that he does. As an accomplice who neither personally killed nor intended to kill the victim, he is exempt from the death penalty under Enmund v. Florida (1982) 458 U.S. 782. Nevertheless, the majority opinion contains an extended discussion of various theoretical constitutional objections to imposing the death penalty for an unintentional killing. Such discussion, in my view, is unnecessary and inappropriate.
Because defendant herein does not face the death penalty, we have no occasion to discuss the constitutional propriety of that penalty. Moreover,
2. Misapplication of People v. Spears
The majority in Spears, supra, held that because minors are statutorily exempt from the death penalty (
The present case involves neither a minor nor a statutory exemption from the death penalty. Defendant herein avoids that penalty only because of the Enmund decision. The high court has nowhere suggested, however, that the lesser penalty of life imprisonment without parole was similarly precluded. Nevertheless, the majority now holds that, simply because defendant is constitutionally exempt from the death penalty, he likewise cannot be sentenced even to the lesser penalty. I think this is wrong.
Unlike Spears, where the legislation itself exempted minors from the death penalty, and some uncertainty may have existed regarding legislative intent, in the case before us section 190.2, subdivision (a), expressly and unambiguously requires the imposition of either death or life imprisonment without parole, and no other penalty, for a first degree murder committed during a robbery. The intent to impose either one of these two penalties (and no lesser penalty) is absolutely clear. A subsequent judicial ruling which has precluded imposition of the greater penalty does not affect the propriety of exacting the lesser.
Moreover, the 1978 death penalty law contains a detailed and comprehensive severability clause which would preserve the lesser penalty even if imposing the death penalty is unconstitutional as applied to an unintentional
3. Misinterpretation of Section 190.2
The majority, in rewriting section 190.2, subdivision (a)(17), to “avoid” constitutional problems, concludes that application of the “felony murder special circumstances” is limited to those persons “who intend to kill or aid in a killing.” (Ante, p. 145.) Again, with respect, this interpretation is patently incorrect, adding, as it does, an element of intent which the sovereign people specifically deleted from prior law by adopting the 1978 initiative measure.
The now repealed 1977 death penalty statute expressly required proof that the defendant, “with intent to cause death,” committed a “willful, deliberate, and premeditated” murder during the commission or attempted commission of various enumerated felonies. (Former
There are at least four difficulties with such a generalized observation:
First, as previously noted, the death penalty is not sought in this case.
Second, the record discloses that the victim was probably shot during a gunfight between defendant‘s accomplice and a deputy sheriff. At this pretrial stage of the case, we cannot simply assume that the killing was either “accidental” or unintentional.
Third, we have no power whatever to rewrite unambiguous penal statutes which fail to comport with our own personal views of “morality.” These judgments are to be made by the people, not this court.
Fourth, there is nothing “momentous” about a statute which permits imposition of the death penalty for accidental killings occurring in the course of the commission of a dangerous felony. Prior to 1973, when the Legislature first added the now deleted requirement of a “willful, deliberate, and premeditated” felony murder, the California statutes authorized routine imposition of the death penalty for any first degree murder (former
The majority points to certain supposed anomalies which conceivably might arise if we interpreted and applied section 190.2, subdivision (a)(17), as it is presently written. As I explain in a subsequent portion of this opinion, we cannot and should not demand absolute perfection or equality of treatment in an area as inherently dependent upon subjective value judgments as criminal punishment. But even assuming that injustices conceivably might occur, that fact does not afford a sound basis for rewriting an unambiguous statute. As previously explained, unlike many of the other statutory special circumstances, and unlike the 1977 predecessor law, the present provision does not require proof of an “intentional” or “willful” or “premeditated” or “deliberate” murder. Thus, no purpose is served by the majority‘s protracted attempts at finding possible anomalies in the law we are sworn to uphold and apply as written.
The majority relies on the ballot arguments regarding the initiative measure (Prop. 7, Gen. Elec. (Nov. 7, 1978)) which contained the provision at issue herein. Those arguments seem wholly inconclusive. As the majority
It is unnecessary to discuss the majority‘s interpretation of the accomplice provisions of the 1978 law (
4. Constitutionality Under the Federal Constitution
Does there exist any constitutional impediment to imposing either death or life imprisonment without parole upon one who kills during a dangerous felony, in the absence of proof of an intent to kill?
With due respect, I find wholly unconvincing the majority‘s analysis of the “serious constitutional questions” which would arise were we to construe section 190.2 as it is written. In Enmund, supra, the high court strongly suggested that either an intent to kill or personal involvement in the killing would be sufficient to justify imposing the death penalty in a felony murder case. Thus, Enmund held that the Eighth Amendment does not permit imposing that penalty “on one such as Enmund who aids and abets a felony in the course of which a murder is committed by others but who does not himself kill, attempt to kill, or intend that a killing take place or that lethal force will be employed.” (Italics added, 458 U.S. at p. 797.) As the court explained, “Enmund did not kill or intend to kill and thus his culpability is plainly different from that of the robbers who killed; yet the state treated them alike....” (Italics added, id., at p. 798.) Thus, the states may continue to punish with death (and certainly with life imprisonment without parole) those persons who, in the course of committing a dangerous felony, actually kill someone, whether or not they actually intended the killing to occur.
In sum, given Enmund‘s strong implication that one who personally kills while committing a dangerous felony constitutionally may be subject to the death penalty, any “serious constitutional questions” are illusory with respect to the provision at issue here.
5. Conclusion
The majority by interpretation has recast the 1978 death penalty law in a manner which effectively nullifies the felony murder special circumstances provision, thereby requiring reversal and retrial of numerous cases presently pending on appeal before this court and the Court of Appeal. In doing so, the majority has ignored sound principles of statutory interpretation and constitutional law, and has thwarted the people‘s will in their adoption of the 1978 law.
Several years ago, in an opinion which invalidated as unconstitutional the 1973 mandatory death penalty statutes, we declined the People‘s invitation to rewrite those statutes in a manner which might pass constitutional muster. (Rockwell v. Superior Court (1976) 18 Cal.3d 420, 444-445.) We stated in Rockwell that “They [the People] ask us not to interpret, but to rewrite the law in a manner which we have shown to be contrary to the manifest legislative intent in enacting [former] sections
In my view, the majority has either forgotten or ignored Rockwell‘s lesson. We should not attempt to rewrite the felony murder special circumstances statute in a manner wholly alien to the manifest intent of those who drafted it, and the people who adopted it. It is as unwise as it is unnecessary.
I would deny the writ.
The petition of real party in interest for a rehearing was denied January 19, 1984.