People v. Bacigalupo

S004764.Crim. No. 26404. Dec. 1993.] [No. PEOPLE,

THE Plaintiff and Respondent, BACIGALUPO, ANGEL Defendant and Appellant. MIGUEL Counsel Johnson,

Cliff Gardner and under Melissa appointments by Court, for Defendant and Appellant. General,

John Van de Daniel K. E. Richard Kamp Lungren, Attorneys Williamson, General, B. Chief John Assistant Iglehart George Attorneys Bass, General, H. and Ronald A. Assistant Ronald S. Sugiyama Attorneys Matthias, Gillette, J. Wei and Dane R. Gen- Christopher Deputy Attorneys eral, for Plaintiff and Respondent.

Kent S. as Amicus Curiae on behalf of Plaintiff and Scheidegger Respon- dent.

Opinion KENNARD, United States Con to the J. stitution, which the infliction of “cruel and unusual prohibits punishments,” various restrictions on the use of the death as punishment imposes scheme for crime. One such restriction is that any defining legislative must include conduct for which death is the criminal prescribed penalty discretion and that channels narrowing jury provides some principle the death penalty to those cases which way distinguish principled criterion cases in which it is not. A death-eligibility from the imposed many under the to meet this standard is deemed impermissibly vague that fails (1988) 486 U.S. 356 Amendment. (Maynard Cartwright Eighth 1853]; (1980) 446 U.S. 420 Godfrey Georgia of criteria: statutory law contains two types California’s death penalty circumstances, a defendant define conduct that renders which the special factors, which assist death and sentence selection for the penalty; eligible found to be already eligible whether a defendant trier of fact to death. the death should be sentenced penalty actually The issue we face in this case is whether the Amendment Eighth vague- ness standard described above governs of the second of the two validity scheme, of factors in the California death types statutory those used penalty determine, but whether eligibility a death- penalty, defendant shall receive the death or the of alternative penalty penalty of life imprisonment without of possibility parole.

After an extensive review of both the constitutional that the requirements United States Court has established for the death and the penalty law, of pertinent provisions our state’s death we reach these conclu- penalty (1) factors, sions: our law’s selection which penalty are not used to deter- mine death eligibility, are not subject standard criteria; used to evaluate death (2) eligibility when evaluated against the standard, appropriate the particular selection factors that defendant challenges do not violate the Amendment. Consistent with these conclusions, we shall reaffirm the judgment of death.

I Our opinion People Bacigalupo Cal.4th 103 Cal.Rptr.2d 335, 820 P.2d I) (Bacigalupo contains a detailed of 559] summary procedural and the history facts this case. For present purposes, only facts are following pertinent.

At the trial, guilt of phase defendant’s capital found him jury guilty two Code, counts of first (Pen. murder degree 189)1,and found to be §§ true the special circumstance allegations robbery-murder multiple murder.2 At the the same subsequent penalty phase, returned a verdict of death.

On his automatic from (§ (b)), of death appeal judgment subd. defendant challenged law portion requiring for the phase jury, purpose between a sentence of life choosing death, without and a possibility parole sentence of to consider “[t]he presence absence of criminal the defendant which activity by involved the indicated, 1Unless otherwise statutory further references are to the Penal Code. 2Califomia’s death penalty defines the special robbery-murder circumstance of law follows: “The murder was committed while the engaged defendant was in or was an of, of, accomplice in the attempted commission flight commission immediate after committing (i) or attempting felon[y]: to commit the following Robbery in violation of [¶] 190.2, (§ (a)(17)(i).) Section 211 ... .” subd. The special multiple way: circumstance of murder is defined this “The defendant has in this proceeding been degree.” convicted of more than one offense of in murder the first or second 190.2, (§ (a)(3).) subd. use of force or violence or the threat to use attempted express implied 190.3, (§ referred to as (b) use force or violence.” factor also [hereafter in (b)].) factor Defendant that the terms “criminal” and “violence” argued (b) factor are under the Amendment because impermissibly vague who fail to basis for between those distinguishing they provide principled the death who do not. deserve those penalty /,

We contention in 1 Cal.4th addressed defendant’s Bacigalupo supra, 103, 148, that undertake a form of out defendant was us to urging pointing had evaluation that the United States Court “vagueness” applied Supreme that that make a criminal to statutes ‘those circumstances “only govern ” under Cali- defendant for the death We “eligible” explained penalty.’ scheme, defendant is fornia’s death determination that a jury’s made of the trial for death “eligible” during guilt phase when the finds the existence of one or more of the statutory special contrast, (b), is used only circumstances. challenged in sentence selection at the when penalty phase, juries purpose cases select from the class of found persons in I will be sentenced to death. Accordingly, Bacigalupo

those who actually evaluation defendant had urged. we declined to undertake the “vagueness” I, 148.) (Bacigalupo I,

After our affirmance of the death Bacigalupo judgment for a writ the United States Court Cal.4th defendant petitioned decision that the court’s of certiorari. In his defendant petition, argued 367, 112 S.Ct. 1130] v. Black clear” that the (issued /) after “made it very shortly Bacigalupo to statutes governing Amendment evaluation applied “vagueness” considera- also to the determination of “death but eligibility,” scheme— (b) in California’s capital tions—such as factor of section 190.3 Court United States Supreme no role in that determination. The that play this court for the matter to defendant’s and remanded granted petition reconsideration light Stringer. remand, from the parties briefing this court solicited supplemental

Upon described counsel oral defense argument, and heard oral At argument. view, how, evaluation “vagueness” detail in his the Eighth some According factors. sentence selection to the section 190.3 should be applied counsel, in favor of a penalty “weigh” factors that could the section 190.3 discre- sentencer to guide some “narrowing” principle of death must provide and imposition in the selection tion so as to avoid arbitrariness be Further, factors must section defense counsel 190.3 argued, penalty. a sentence can determine why court reviewing objective sufficiently case. in a death was imposed particular

465 To understand the defendant’s we must underlying argument, concepts examine the Eighth guiding principles jurisprudence the United Court in death cases it decided States applied by Supreme penalty 367, _[117 supra, before v. 503 U.S. L.Ed.2d 112 S.Ct. 1130].

II The United States Court’s rests capital punishment jurisprudence “ ‘ on the “the infliction of a sentence of death under principle legal systems this to be . . . and . . . permit unique penalty wantonly ’ ” violates the and Fourteenth freakishly imposed” Eighth Amendments to 764, (Lewis (1990) federal Constitution. v. U.S. 497 774 [111 Jeffers _ 606, 618, 3092, accord, 3099]; (1993) L.Ed.2d 110 S.Ct. Arave v. Creech 188, 193, 1534, 1536].) U.S. L.Ed.2d 113 S.Ct. [123 court has drawn a distinction between two aspects capital sentencing: “narrowing” “selection.” to a state’s “Narrowing” pertains definition” of the “legislative circumstances that a defendant within the place class of (Zant (1983) for the death persons eligible v. 462 penalty. Stephens 862, 235, 250-251, 2733]; U.S. 878 L.Ed.2d Godfrey 103 v. [77 406].) 446 Georgia, supra, U.S. 428 L.Ed.2d at To p. with p. comport [64 Amendment, requirements legislative definition of a state’s scheme capital punishment that serves the requisite “narrowing” function must “circumscribe class of for the death persons eligible (Zant penalty.” Stephens, v. [77 251].) it Additionally, must afford some basis for objective distinguishing case in which the death has been from the penalty cases imposed many which it has not. (Godfrey 446 U.S. at Georgia, supra, 409].) A definition “some legislative lacking narrowing principle” limit the class of no persons eligible having objective basis review is deemed to be appellate impermissibly vague under Amendment. (Maynard 486 U.S. at Cartwright, 380]; 446 U.S. at Godfrey Georgia, supra, 406].) L.Ed.2d at p. statutes function” in one of Typically, satisfy “narrowing two (Lowenfield ways. Phelps Some that the states define offenses so narrowly (Ibid,

jury’s finding guilt reflects function.” “narrowing requisite [the under the narrowing Louisiana death statute at issue Lowenfield was on of murder under the verdicts three counts provided jury’s guilt “ that the had ‘a intent to kill or to statutory provision defendant specific

466 ”].) inflict harm more than one Other states define great bodily upon person.’ broadly “by findings offenses more of capital provide narrowing (Ibid, at the circumstances penalty phase.” [citing Georgia at the by jury findings scheme capital providing required “narrowing” of the existence of one or more circum alleged “aggravating penalty phase stances”].)

Once a defendant is determined to be within the narrowed class of capital defendants, the must decide whether to im death-eligible sentencing body a sentence of death or of life Of in this pose imprisonment. importance an individualized determination on the basis of selection “is penalty process (Zant the character of the individual the circumstances the crime.” v. italics.) 462 U.S. at L.Ed.2d at Stephens, supra, p. p. original 879 [77 “ Thus, consideration the sentencer of ‘the by any mitigating aspect of the character and record of the individual offender and circumstances ” “ ‘a of the offense’ constitutionally indispensable part process particular ” _ (Johnson (1993)_U.S. of death.’ v. Texas inflicting penalty 290, 301, 2658, 2665]; (1982) L.Ed.2d 113 S.Ct. v. Eddings Oklahoma [125 1, 869]; (1978) U.S. 455 U.S. 104 L.Ed.2d 102 S.Ct. Lockett v. Ohio 438 [71 973, 2954].) S.Ct. 586 L.Ed.2d 98 [57 defendant within “the defined legislatively category

If comes capital can consider “a the sentencer myriad persons penalty,” Ramos (California v. of factors” selecting appropriate punishment. 1171, 1185, 992, 3446].) 103 S.Ct. (1983) 463 U.S. 1008 L.Ed.2d [77 Moreover, deferred to a the United States Court has generally are relevant to the choice of the factors that state’s substantive 720, (1991) 808 determination. v. Tennessee 501 U.S. (Payne [115 2597, Ramos, 2608]; 463 U.S. at 1001 supra, p. 111 S.Ct. v. California 1180].) L.Ed.2d at p. [77 case, Thus, entity of a the legal in the selection process capital consider may to decide what to impose that is judge) (jury authorities” sentencing considered long evidence “general type Tennessee, cases, evidence (Payne victim impact other criminal such as 2608]), the 111 S.Ct. at L.Ed.2d at p. 501 U.S. at (1983) 463 U.S. (see v. Florida Barclay criminal record defendant’s 1147-1148, 3418]), other aggravating 103 956 [77 (Zant Stephens, supra, defendant evidence about the scheme “narrows 248]). As as a state’s long L.Ed.2d at p. selection sentence during murderers” and then death-eligible the class of of evi consideration of discretion and does not limit the exercise permits that the has stated Court the United States Supreme dence mitigation, Phelps, no more.” “requires (Lowenfield accord, 583]; Brown U.S. California 934, 939-940, Indeed, court found no constitutional defect in a scheme that capital sentencing the sentence selection afforded the sentencer “unbridled discretion” process what to on sentence a defendant within the narrowed impose (Zant of 462 persons eligible class penalty. Stephens, supra, 248].) at at U.S. 875 L.Ed.2d p. p. [77 the court distinction has drawn between the “narrowing” of a

“selection” scheme our aspects conclusion capital underlay I that the Bacigalupo section 190.3 factors of California’s capital penalty statute, which to sentence role in only selection and no narrow pertain play the class the ing of murderers for death were not eligible penalty, subject the Eighth Amendment standard used to evaluate death criteria. eligibility I, 148.) (Bacigalupo supra, 1 Cal.4th at we To remain with explain why conclusion, we now turn to the our specific of 1978 death provisions law. penalty

Ill here, Under the California 1978 scheme involved a case for which capital Legislature the has the death is tried in prescribed penalty separate phases. (§ 190.1.) trial, At the initial of the the phase trier fact decides the issue defendant’s guilt innocence first murder. If the degree defendant found a guilty, determination must be made to the as existence of any 190.1, (§§ 190.2.) circumstances.” “special If the trier of finds at fact least true, one alleged circumstance to be special the case to the proceeds “pen- alty” phase the trial.

With to the role of the respect circumstances tried special during guilt trial, of the phase California’s 1978 death statute is essentially identical to California’s death 1977 law the United States (1984) Court upheld Pulley v. Harris 184 U.S. 37 L.Ed.2d 871], in that it to find at least one “requir[es] jury special circum doubt,” stance beyond reasonable thereby “limit[ing] the death sentence (Id. a small subclass” of 42].) murders. at “ ” “ ” California, the special circumstances serve to and ‘channel’ ‘guide’ discretion “by strictly confining class of offenders for death Brown penalty.” (People v. 40 Cal.3d 539-540 [220 709 P.2d revd. on other Cal.Rptr. sub nom. grounds California Brown, 538.) supra, 479 U.S. As the criteria in the California scheme that define the class of murders for which is a potential penalty, set circumstances forth in section 190.2 must with comport special clear and stan- requirements providing objective discretion, dards for but also detailed and channeling jury specific guidance, “ thus death sentence review- making process imposing ‘rationally able.’” (Godfrey Georgia, supra, U.S.

406].) law, therefore,

Under our death circum- section 190.2 “special stances” the same function perform constitutionally “narrowing” required factors” circumstances” that some “aggravating “aggravating (See other states use in their statutes. capital sentencing Georgia Gregg 153, 193, 859, 886, (1976) 428 and fn. use factors or those states that circumstances aggravating the

criteria to circumscribe the of murderers eligible penalty, class of or circum- the truth the of allegations (See is in the or of the trial. Ariz. stances determined second penalty phase (1993); 921.141(1), (2) (3) (1992); Rev. Stat. Ann. 13-703 Fla. Stat. & § § 17-10-30, contrast, (1993).) 17-10-2(c), Code By Ga. Ann. 17-10-31 §§ of that render a defend- California the existence the circumstances” “special with is determined charged ant murder capital trial, with of the at the first of the the issue “guilt” phase together or 190.4, (a) (§ subd. or of first murder. degree defendant’s innocence guilt first guilty degree the trier of fact that the defendant is of [Upon finding by murder, of “the make a on the truth finding trier of fact shall also special circumstance[,]” a rea- which must be proved each alleged beyond special scheme doubt.].) In this California’s is respect, unique. sonable capital here, When, trier law at issue the under the California death 1978 circum at least one of fact the of the trial finds guilt phase special during true, sentencing case to the “penalty” stance to be the allegation proceeds 190.3; Harris, 51 (§ 465 U.S. at Pulley supra, p. of the trial. see phase law].) At this stage of the L.Ed.2d at this 1977 pp. [discussing aspect 40-41] is be offered and the jury in the evidence may proceedings, “[additional to it in deciding from section guide a list of relevant factors” 190.3 given aor the of parole to a sentence of life without possibility whether impose Harris, (Pulley supra, of death. sentence the the is to select punish The sole of purpose penalty phase class of to the narrowed who found be within for a has been

ment defendant (People be an penalty. death would appropriate murderers for whom in Brown: Brown, 539-540.) we explained As 40 Cal.3d at pp. “ is an individualized ... phase] is the penalty important [at ‘[W]hat and the circum of of character the individual the basis on determination U.S. at (Zant Stephens], supra, of the crime.’ stances [v. 251].) . . It not of facts which resolves simply finding . is ' decision, “but. . . the moral assessment of those facts as the jury’s ” be . on whether defendant should to death . . put reflect they [the] Brown, Cal.3d at italics in

(People original.) lists Section 190.3 of California’s scheme the various factors that consider, take the sentencer is “to into account and be guided by” (k), With of section factor which invites exception 190.3’s penalty. “circumstance which any consideration extenuates gravity crime," crime even it not a excuse for the the statute does though legal of the factors as or exclu designate any explicitly exclusively aggravating (1985) 41 sively mitigating. (People v. Cal.3d Davenport 861].) It 710 P.2d fact directs trier of Cal.Rptr. simply aspects and the defendant’s offense that are relevant to background the penalty determination. instance, (a)

For of section 190.3 directs the body consider circumstances of the crime “[t]he of which defendant was convicted in the and the existence of circum- present proceeding any special stance found to be true . (b) . . .” Factor invites consideration “[t]he presence absence criminal defendant which involved activity use or attempted use of force or or violence or the threat express to implied use force or (c), violence.” Under factor the sentencer can consider whether not or the has defendant suffered a conviction for a offense. And prior felony (d) factors refer to through (j) of the circumstances of the aspects capital offense that bear on a defendant’s moral the culpability committing offense, and that in a might case assist in the particular individualized determination of penalty.3

With to respect the sentencing consideration of evidence body’s relevant 190.3, to the factors forth set in section the statute further that if “the provides circumstances the outweigh mitigating (d) (j) through 3Factors of section 190.3 direct the following sentencer’s attention to the aspects of the (d) circumstances of the crime: whether not or the offense was committed while the defendant was under the influence of extreme mental or emotional disturbance; (e) whether or not the victim participant was a in the defendant’s homicidal act; (f) conduct or consented to the homicidal whether not the or offense was committed under circumstances which the reasonably defendant believed to moral justification be a or conduct; (g) extenuation for his or her or whether not defendant acted under extreme duress under (h) or the substantial of person; domination another whether not or at the time of the capacity offense the appreciate criminality of the defendant to the of his or her conduct or to conform his or her requirements conduct to the of the law was impaired a result of mental defect, intoxication; (i) disease or age the effects of the of the defendant at the time of the crime; (j) and whether not accomplice the defendant was an to the offense and his or her participation the relatively commission of the offense was minor. circumstances,” the trier of fact “shall a sentence of This death.” impose is a nature “weighing” incapable precise that “is process description.” Brown, 541.) The (People 40 Cal.3d at “weighing” aggravating against circumstances is “a mental mitigating balancing pro cess,” but not one that involves a “mechanical of factors” on either counting ” scale, side of some or “the to imaginary arbitrary assignment ‘weights’ Rather, law, (Ibid.) factor. under our death faced any juror penalty with the “individualized” determination whether defend making requisite ant should be sentenced or to death free to to life without is entirely parole moral or value deems to assign juror appropriate whatever that sympathetic Moreover, in (Ibid.) “each all” the “that the directing and relevant factors. it ‘shall’ the death if finds penalty impose death law California’s does ‘outweigh’ require mitigating,” penalty . . is juror to vote for death unless . “any juror penalty [that convinced] (Ibid.) all circumstances." death under penalty appropriate scheme, Thus, under death task that the jury California’s 1978 penalty at the of the trial is normative." phase “essentially (People performs 766 P.2d v. Edelbacher 47 Cal.3d Cal.Rptr. “its own moral Representing community large, jury applies to the evidence has presented” standards mitigating if death is the “ultimate for responsibility determining appropriate (Ibid.) for the offense and offender.” particular was law I at issue Bacigalupo aspect time, (b) At that defendant factor of section 190.3. challenge

defendant’s factor-(b) used in were “criminal” and “violence” as that the terms argued Amendment. We declined under vague unconstitutionally (b) because we con- “vagueness” evaluate in the United States Supreme such an evaluation the decisions of cluded that aof state’s “narrowing" to the exclusively aspect Court had been applied I, 148.) 1 Cal.4th p. scheme. (Bacigalupo supra, capital punishment court’s recent conclusion here in light high Before reviewing Black, U.S__[117 112 S.Ct. in supra, decision Stringer 862, the in case 1130], turn to v. Stephens, we Zant briefly whether, in in it revisited Stringer: which the court first issue high posed to aggravating case weigh in a capital a state that sentencer requires factors, aggravating of a “vague” the consideration against mitigating Amendment. Eighth violates the factor in the weighing process IV an whether was in Zant v. Stephens, supra, At issue in function” “narrowing requisite served the circumstance” that “aggravating scheme, the State of but failed to define the Georgia’s capital sentencing class of murderers with sufficient to death-eligible precision satisfy Amendment, affect the might adversely sentence selection process. The impermissibly vague statutory circumstance in Zant aggravating —whether the offense of murder was committed with “a person substantial of serious assaultive history criminal convictions”—was one of three aggravating-circumstance to allegations found be true. jury (462 243].) U.S. at 866-867 pp. L.Ed.2d at Because the p. other two aggravating circumstances satisfied requirements, they provided the to necessary “narrowing” differentiate the defendant’s case “in evenhanded, an objective, substantively rational from the way many murder Georgia (462 cases which the death be may not imposed.” Therefore, 251].) U.S. at L.Ed.2d at the United States concluded, Court the defendant’s for the death eligibility was not on a premised invalid constitutionally (Ibid.) circumstance. The high court Zant then considered whether the earlier jury’s finding of the existence of the aggravating circumstance that the defendant “a had substantial of serious history assaultive criminal convictions” have might “infected” the sentence choice jury’s because the was aware of that jury finding during “selection” process. court concluded that the vague circumstance did not infect the sentence selection be process cause under Georgia’s scheme a of an jury’s “finding circumstance does not role play any in the guiding sentencing body discretion, exercise its from its function of the class of apart narrowing persons convicted of murder who are (Zant penalty.” Stephens, supra, 462 U.S. at But the court declined express view on the any possible significance of the sentencer’s consideration in the selection of sentence of a “vague” aggravat ing circumstance “under a scheme in which the statutory judge specifically weigh instructed statutory aggravating circum mitigating stances” in whether to (Id. impose p. 890 penalty. 258], later, added.) italics Nine years the high court resolved this issue in U.S__[117 which we review below.

V Black, 367, Stringer v. supra, 503 U.S. L.Ed.2d 112 S.Ct. [117 was before the on court high certiorari from the Fifth Circuit of Court denial of Appeals habeas relief corpus to defendant was who under Stringer, a court, death Mississippi At trial in judgment. state the had Stringer’s jury murder, found guilty capital him and the the at found phase 472 factors, one of which was statutory

existence three alleged heinous, weighing that the crime was atrocious cruel.” After “especially evidence, the against those three factors in the aggravation mitigating The affirmed the returned a verdict of death. Court Mississippi Supreme when death and exhausted his direct in 1985 judgment, Stringer appeal rights for States Court denied his certiorari. (Stringer the United Supreme petition 368, (1985) U.S. 1230 L.Ed.2d Mississippi v. 469 [84 then habeas relief from the federal courts. He Stringer sought corpus two of the United States v. Supreme Court—Maynard relied on decisions 356, (1990) and U.S. supra, 486 U.S. v. 494 Cartwright, Mississippi Clemons 725, of which had been decided 738 L.Ed.2d 110 S.Ct. 1441]—both had exhausted his of direct In right appeal. Maynard, after Stringer heinous, States Court held that the atrocious “especially United Supreme factor used in Oklahoma’s scheme was capital impermis cruel” aggravating it “narrowing” under the Amendment because lacked vague any sibly a an basis for court objective would provide reviewing principle in which the death was from the imposed many case distinguish at which it cases in was not. 363-364 (Maynard, supra, pp. Thereafter, Clemons, 381-382].) court a decision reviewed high pp. that, down Maynard, had struck Court Mississippi applying Supreme heinous, or cruel” atrocious Mississippi’s “especially (Clemons, 738.) 494 U.S. vague. supra, being unconstitutionally Court, the State of Missis In its to the United States argument were decided that because Clemons argued Maynard sippi Stringer he was barred his appeal procedurally after had exhausted Stringer rights, on under v. Lane U.S. 288 from either case relying Teague seeks who petitioner Teague precludes 1060]. new of a in federal court from benefit gaining habeas relief corpus all direct rule after the exhaustion of decisional announced petitioner’s court held rights. Mississippi’s argument, appeal rejecting scheme, neither Maynard with to the respect Mississippi punishment supra, Mississippi, nor Clemons v. Cartwright, supra, rule, not' fore therefore was had a new U.S. announced his those cases authority under from on relying closed Teague U.S. at supra, p— habeas (Stringer federal corpus proceeding. 376-378, 1135-1136].) 112 S.Ct. at pp. pp. not a new rule under Teague Clemons was why In the course of explaining Lane, between differences court highlighted U.S. in Godfrey Georgia, statute issue the Georgia at issue Clemons. scheme statutory and the Mississippi observed, however, court the extent the differences between the two were of “significant,” they schemes “that the suggested Godfrey application follows, to the Mississippi a from its principle sentencing process fortiori, Black, to the application Georgia system.” supra, 503 U.S. at (Stringer p. 1136].) at at p. p. S.Ct. In the distinction between the describing Missis- principal Georgia schemes, sippi capital the court punishment Stringer observed: State,’ is what we have termed ‘a while “Mississippi Georgia is weighing Black, not.” at (Stringer supra, 503 U.S. p__[117 p. 1136].) at In a

S.Ct. “must find p. Georgia, capital the existence of one jury aggravating factor before the death but imposing penalty, factors aggravating such have no function in the specific jury’s decision whether [sentencing] a defendant who has been found to be for eligible the death should receive it under all the (Id. circumstances of the case.” at p__[117 contrast, at 1136].) S.Ct. at the court Stringer explained, law, a after has a Mississippi “[u]nder found defendant of guilty murder and factor, found the of existence at least one statutory aggravating it must the weigh factor or aggravating evi- against mitigating dence” (Ibid.) before imposing penalty. court then turned to it left question unresolved in Zant v.

Stephens, supra, 462 U.S. 862: whether in a state” a “weighing jury’s consideration an impermissibly vague aggravating circumstance could affect sentence adversely selection The court “In process. explained: State, nonweighing so as the long finds at least body one valid sentencing factor, the fact that it an also finds invalid factor does not infect the formal process whether death is an appropri- ate penalty. a determination Assuming by the state court that the appellate invalid factor would determination, not have made a difference to the jury’s there is no constitutional violation from the introduction of resulting invalid factor in narrowing] stage [the But when proceedings. is told to an body invalid weigh factor its [sentence selection] decision, a court reviewing may assume it would have made no differ- ence if the thumb had been removed from death’s side the scale.” (Stringer supra, 503 U.S. at p__[117

at p. The high court explained that state uses aggravating factors “in deciding who shall be eligible for the death penalty who shall receive the death cannot penalty” such factors which “fail to employ guide (Id. sentencer’s discretion.” p__[117 L.Ed.2d 112 S.Ct. at 1139.) The court added: “A for vague employed purpose whether a determining defendant the death penalty fails to channel sentencer’s discretion. A factor used vague aggravating

474 worse, in a sense for it creates that the in the the risk weighing process will more than he treat the defendant as of the death deserving jury the existence of an circumstance.” upon illusory otherwise be might by relying (I _ 382, 1139].) at at at L.Ed.2d 112 S.Ct. [117 d. scheme, Under the when the an sentencer considers Mississippi capital factor that does with the v. aggravating comport requirements Godfrey 446 U.S. 420 and v. 486 U.S. Georgia, supra, Maynard Cartwright, supra, 356, miti that factor “imprecise” aggravating weighing “vague” against into evidence the selection of sentence the constitution gating during injects “individualized” of “random ally required sentencing process possibility Black, “bias the death v. supra, ness” and in favor of 503 penalty.” (Stringer _ 379, 382, U.S. pp. pp. pp.

1139].)

Thus, Black, U.S__[117 v. 112 S.Ct. supra, issue the United States Court resolved the it left undecided Supreme 235, 258], Zant v. Stephens, U.S. supra, death in a when the “weighing on a state” explaining judgment effect factor evidence sentencer a “weighs” “vague” aggravating against mitigating selection In a state such as whose process. sentence during Mississippi for the to death law sentencer those weigh provides evidence, the of the factors found exist infection against to mitigating with an unconstitutionally sentence selection process vague court to “reweigh factor a either requires reviewing of the imprecise circumstances consideration mitigating factor] [without Black, supra, undertake harmless-error analysis.” (Stringer _ 112 S.Ct. at L.Ed.2d at p. effect on a must now whether explanation

We determine Stringer’s during of a “vague” aggravating weighed Mississippi judgment here defendant’s contention that the sentence selection supports to the scheme are subject section of California’s capital 190.3 420 and 446 U.S. Godfrey “vagueness” Georgia, analysis not, We conclude it does that Maynard 356. Cartwright, we explain. shall VI in Stringer States Court’s decision

Defendant reads the United 1130], mean that supra, 503 U.S. of death aby process state that select a sentence any permits jury in the must include factors” statutory “aggravating includes weighing that channels factor a narrowing definition of each aggravating principle whether court determine reviewing discretion enables a to objectively the facts of the case meet that Defendant particular definition. maintains California’s scheme is to this standard because the capital subject jury the of a California determines during penalty trial the phase appro- by the and priate penalty “weighing” circumstances mitigating in section We 190.3. are this specified unpersuaded by argument.

The standard that defendant would have us to evaluate the section employ 190.3 sentencing factors—whether are defined and they statutorily narrowly to channel precisely enough discretion and to enable a jury court reviewing to objectively determine whether facts of each case fall inside or outside the definition—is the standard that the United States has Court Supreme mandated for evaluation laws of that circumscribe the class of death- defendants. Were we eligible to defendant’s our accept factors that argument, selection, state law uses only penalty to determine whether death alternative of life penalty without is the more parole possibility appropri- sentence, ate would have to be and narrow specific enough determining is, death that eligibility, the criminal defining conduct punishable either by death or life without possibility of This of death- parole. merging eligibility criteria cannot penalty-selection be reconciled with dis- tinction the United States Court has Supreme drawn between the consistently “narrowing" “selection” aspects capital sentencing. of a “narrowing” aspect state’s death that law defines penalty

the conduct that a defendant brings within the class persons subject to must, death Amendment, with the comport include Eighth “some narrowing so as to limit the principle” members of that class. v. (Godfrey 420, Georgia, supra, 398, 446 U.S. 428 406]; L.Ed.2d Maynard v. 356, Cartwright, 372, supra, But, 486 U.S. L.Ed.2d 380].) when a capital punishment statute narrows the class of adequately death-eligible murderers, the Amendment Eighth does not a further require round “narrowing” at sentence selection stage.

Likewise, a is, statutory provision defines death eligibility, criminal conduct for which death is a potential with the penalty, comports Amendment if Eighth it offers an court reviewing basis objective distinguish the case under review from the cases in which the many was not imposed. (Godfrey supra, U.S. Georgia, But the no such restraint on places the sentence selection when the must process, sentencing decide body whether a defendant found already should be sentenced actually to death. The scheme Georgia capital illustrates this point: granting “unbridled discretion" in its sentence selection decision, the Georgia capital punishment scheme that the court high upheld 862, for a no basis whatsoever 462 U.S. Stephens, supra, provided

in Zant v. influenced that decision. discern the factors that court to reviewing court’s recent decision Nor does the 1130], conclusion that the alter our _[117 446 U.S. Godfrey Georgia, supra, Amendment standard set forth 406], and Maynard Cartwright, to California’s section does not apply 361 [100 involved an aggravating factors. Although Stringer

190.3 had Court that the scheme Mississippi in the Mississippi capital v. and Godfrey Georgia under vague to be unconstitutionally determined decision in Court’s Supreme the United States v. Maynard Cartwright, for sentence factors used not hold that aggravating does Stringer Rather, the Amendment standard. to that same Eighth are subject selection in was on the effect of a “vague” Stringer of the court’s opinion focus against such a factor “weighs” when a sentencing jury factor the court As sentence selection process. evidence during mitigating in the sentencing jury’s of aggravating explained, weighing to infect the an vague aggravating decision allows impermissibly individualized sentenc into the thereby injecting sentence selection process, as well as “bias favor of “randomness” determination the possibility ing U.S—, L.Ed.2d v. 503 [117 (Stringer the death penalty.” however, silent, 382, 1139].) on 112 S.Ct. at p. as those set out factors such for aggravating Amendment requirements scheme. capital section of California’s 190.3 function of the section 190.3 with and inconsistent the purpose

It would be Amendment the Eighth factors to satisfy factors to those require sentencing 420, and v. Maynard 446 U.S. v. Godfrey Georgia, requirements factors of our The section 190.3 486 U.S. 356. Cartwright, supra, and attention to specific, provable, the sentencer’s law “direct death penalty crime and the defendant capital facts about the understandable commonly Tuilaepa v. (People moral culpability.” bear on that might [the defendant’s] cert, 382, 569, granted 842 P.2d Cal.Rptr.2d 4 595 (1992) Cal.4th [15 _ 563, 114 S.Ct. 1993, 93-5131) L.Ed.2d 6, (Dock. No. U.S. Dec. “ defendant, background, his ‘facts and circumstances 598].) The ” in a death penalty decision the sentencing most relevant to are his crime’ 738, 748 U.S. v. Mississippi, supra, Clemons (Id. at case. quoting state, within Tuilaepa: observed As we “[T]he L.Ed.2d facts are to be limits, presented how such to decide has broad latitude certain (1991) 501 U.S. Tennessee v. (Payne penalty phase and considered U.S. 720, 735, 2597]; v. Boyde 111 S.Ct. California token, same 316, 326, 1190]). By 377 [108 the Eighth individualized determination Amendment required by values, makes inevitable the sentencer’s own application perceptions, to the factors the state deems relevant. experiences properly (Eddings 1, 8-9, [supra,] Oklahoma 110-112 869].)” 594.) (People Cal.4th Tuilaepa, supra, assessment of the moral of a defendant

Any meaningful con culpability of the crime will victed murder include some facts invariably capital about offense and offender that will in the decision weigh sentencing in favor of the more severe of death. The section “aggravat 190.3 factors in California’s scheme do no more ing” than direct attention function, to such facts. Because they do “narrowing” perform are not subject to the standard that the United they States Court articulated Godfrey Georgia, supra, and in Maynard supra, 486 U.S. Cartwright, 356. not, however,

We do that the suggest no imposes standards whatsoever on those factors in section 190.3 of our 1978 death law that can penalty serve to we aggravate penalty. As explained in People v. Tuilaepa, supra, Cal.4th at these page factors must meet the dual standards of and of “relevance.” must “specificity” be défined They in terms clear and that sufficiently specific jurors can understand their and meaning, they must direct the sentencer to evidence relevant and for the appropriate determination.4 criteria,

To meet these dual sentencing factors should not into the inject individualized sentencing determination the or possibility of “randomness” in Black, “bias favor of the U.S._, penalty.” (Stringer supra, 503 _[117 1139].) 112 S.Ct. 1130 at Inappropriate consideration in the sentence selection would be process any aggravating factor that was either and “seriously prejudicially that misleading,” invited “the to be influenced aby speculative consider improper ],” such the as race or beliefs of the political defendant that are without ation on any bearing moral culpability. (People Ramos 37 Cal.3d 430]; P.2d Cal.Rptr. (1992)_U.S. Dawson v. Delaware concurring dissenting 4Justice Mosk’s and opinion in apparent accord with this conclu opinion highlights sion. The passage in p._[117 503 U.S. at 381-382, at pp. at p. explaining aggravating that state cannot use 1139] capital punishment factors its guide scheme that “fail to the sentencer’s discretion.” It then concludes that this “[c]onsequently” means that California’s section 190.3 “clearly (Conc. must opn., post, 487.) be defined.” and dis. at p. concurring Nowhere does must, and dissenting opinion suggest only factors used in sentence selection contends, provide as defendant principle some “narrowing” sufficiently objective be a reviewing why court can determine the death penalty imposed. was relevance, we now con- of specificity these dual standards Against in this case to the section 190.3 challenges defendant’s sider factors.

VII I to contention he raised Bacigalupo here renews the Defendant (b) scheme. Factor (b) permits in California’s capital of section 190.3 factor to take into account of a case capital “[t]he at the penalty phase the sentencer defendant which involved activity by or absence of criminal presence (Italics added.) Defendant or violence ....’’ use of force use or attempted ” because “unconstitutionally ‘vague’ terms are that the italicized argues conduct that on specific fail to focus the jury’s attention they “ who deserve the death between those ‘a distinction would principled permit ” I, 1 Cal.4th at pp. who do not.’ (Bacigalupo and those Amendment standard But, we 147-148.) as explained previously, factors such statutory invokes does not govern that defendant of precision sentence considers (b) phase jury that a California penalty factor if they factors violate selection Such process. not relevant to facts or if direct sentencer they specific are insufficiently 569, 595.) 4 Cal.4th Tuilaepa, supra, evaluation. (People to the penalty 190.3, earlier, accord with its (b) of section As mentioned “to directs the phase jury in the sentence selection process, function defendant facts about the understandable and commonly provable, specific, moral culpability.” bear on crime that might defendant’s] and the [the Moreover, of a 595.) evidence 4 Cal.4th supra, v. (People Tuilaepa, of conduct, involves acts when such conduct criminal especially defendant’s considered type long is of “general directed at another person, violence deci to the authorities,” relevant and is particularly by Tennessee, U.S. at p._[115 501 supra, (Payne sion. Florida, U.S. at 956 463 2608]; Barclay see

111 S.Ct. at p. record criminal defendant’s [describing capital pp. 1147-1148] view, In our penalty].) consideration for sentencer as appropriate more. no requires jurisprudence Court’s capital States Supreme the United 190.3, contends defendant (a) factor of section Turning basis no objective and provides “narrowing principle” it contains no because under vague it is impermissibly death judgment, review of a for appellate We disagree. Amendment. consid- designate jury terms to (a) understandable clearly Factor uses of which selection, the crime of circumstances eration in sentence “[t]he defendant was convicted in and the existence present proceeding of any 190.3, (§ (a).) circumstances found to be true . . . special factor In any criminal case the circumstances of the crime which of the defendant stands Indeed, convicted are the single most pertinent sentencing consideration. crime, the sentencer directing to consider the circumstances of the capital (a) of factor section 190.3 embodies a consideration that the United States “ Court has identified as ‘a constitutionally indispensable part ” Texas, (Johnson of death.’ process inflicting supra,_ 290, 301, 2658, 2665]; People Tuilaepa, 594; Cal.4th at (1993) Proctor People v. Cal.4th 551 [15 Therefore, P.2d Cal.Rptr.2d when a California consid- ers the circumstances of a defendant’s crimes for the purpose an making individualized life determination whether without possibility or death parole for a defendant determined appropriate penalty already to be within murderers, the narrowed class of there death-eligible can be no violation of the Eighth Amendment cruel and prohibition against unusual punishments.

Conclusion

We affirm the its judgment in entirety. Lucas, J., Arabian, J., Baxter, J., J., C. concurred. George, PANELLI, I concurin the judgment. J.

In People v. Bacigalupo Cal.4th 103 820 P.2d Cal.Rptr.2d I) (Bacigalupo appellant 559] claimed that one of our sentencing factors Code, (Pen. 190.3, (b) § violent [prior conduct]) criminal was imper missibly under the vague Eighth Amendment to the United States Constitu claim, tion. We rejected appellant’s that the United reasoning States Su Court preme had thus far applied vagueness analysis “statutes that govern ‘those circumstances that make a criminal ” defendant I, “eligible” penalty.’ (Bacigalupo supra, 1 Cal.4th 148, at p. (1990) 764, Lewis v. quoting 774 L.Ed.2d [111 Jeffers 606, 619, 3092, 3099].) 110 S.Ct. In California it is the special circum stances set out in Penal Code section 190.2 that make a defendant eligible for death. The factors set out in sentencing section 190.3 the after apply only defendant has already been found death-eligible under section 190.2.

When appellant renewed his claim in certiorari, petition the high court granted vacated petition, our judgment, and remanded the case “for further consideration in light [(1992)] U.S__[117 v. Black Stringer 503

480 367, L.Ed.2d 112 S.Ct. (1992)_U.S._ (Bacigalupo 1130].” California 5, 32].) L.Ed.2d 113 S.Ct. [121 _ (1992) In v. Black 112 Stringer U.S. L.Ed.2d S.Ct. 1130] court {Stringer), high Amendment applied Eighth vagueness analysis, (1980) articulated in Godfrey v. Georgia U.S. 420 (1988) S.Ct. Maynard Cartwright U.S. 738 1759] 108 S.Ct. The law. in that Mississippi language Stringer court to remand this case reads undoubtedly prompted high as follows: factors, our do not the use of “Although precedents require aggravating they have not a State in which permitted factors are decisive to aggravating use factors of A vague content. factor imprecise vague aggravating employed for the whether a purpose defendant is for the death determining eligible fails to channel the sentencer’s discretion. A vague aggravating worse, factor used inis a sense for it creates the weighing process risk that the will treat jury the defendant as more deserving of the death penalty than he otherwise be might the existence of an by relying upon illusory circumstance. Because the use of a factor in vague weighing creates the process not of randomness possibility but also of bias favor of the death we cautioned Zant penalty, Stephens [v. (77 2733)] there be a might requirement

when the has been weighing infected with a factor the death process vague sentence must be invalidated.” 503 U.S. at (Stringer, supra, L.Ed.2d at 112 S.Ct. at

The that the court’s order us to answer is whether question high requires has about California’s Stringer anything factors. better say view, is that it reading does not. Stringer, my court applied vagueness analysis to the factors that make a defendant for death in statutory Missis eligible state, In that a defendant who has been convicted of sippi. “[f]or sentence, murder to find at eight receive the death must least one of jury factors, and then it must determine that the statutory aggravating circumstances, if factors are outweighed by mitigating any.” 375, 112 503 U.S. at (Stringer, supra, p._[117 1134]; 99-19-101.) see Miss. Code Ann. § law, cannot and the defend- begin,

Under the weighing process Mississippi until the has found at ant is not unless and penalty, Thus, of a one factor to be true. use condemning least “[t]he (503 factor in the U.S. at weighing process” p._[117 vague aggravating 1139]), high Stringer appears L.Ed.2d at 112 S.Ct. at the court to have meant that the harm caused a defendant by finding eligible for undone, death under an factor is not unconstitutionally vague aggravating worsened, is and indeed the to the invalid weigh permitting jury face, evidence On sentencing later the its this against mitigating process. that, no holding has obvious to factors like Califor- application nia’s, first come into after the defendant has been found play only already for death. eligible

amI aware that the Court has said that the Mississippi Supreme narrowing ends, death, in that a state and defendant for process becomes eligible upon conviction of murder though, even at that the has point, to jury yet (Ladner make the that least one factor is required finding true. (Miss. However, 1991) 763.) State So.2d it makes a no sense as practical matter that the has say narrowing ended and a defendant process for death eligible before the has made that jury a must be made finding before the I can find weighing process begin. confirmation of this implicit view in the Stringer court’s failure to the endorse Mississippi Supreme Court’s of when the understanding ends. narrowing process

The and concurring dissenting opinion reads that the Stringer saying court will now high apply Eighth vagueness not analysis just to the factors that make a defendant eligible but also to the factors that assist a the jury selecting punishment for appropriate defendant who has been already found death-eligible. this con reaching clusion, the concurring much dissenting opinion attributes significance that, to the statement in in Clemons v. Mississippi 1441], court “took for . . . granted proposition if State uses factors in who shall be for the death or who shall receive the death it penalty, cannot use factors which as a practical matter fail to the sentencer’s guide discretion.” (Stringer, supra, 503 p._[117

S.Ct. at added.) italics I attribute significance less to the statement law, because it occurred in the context of a discussion of which Mississippi is significantly different than California’s. factors,

California’s statutory sentencing contrast to do Mississippi’s, Instead, articulate must propositions find be true or false. evidence, California’s factors direct merely the jury’s attention to relevant as, crime, such example, circumstances or absence presence violent prior criminal activity, the defendant’s age time Code, (Pen. 190.3, offense. (a), (b) (i).) & Nor does § the California unlike jury, make Mississippi findings about the state of the jury, evidence before the can weighing process begin. high court 482 applied Eighth vagueness analysis Amendment to a statute like

has never California’s.1

Moreover, that invalidates a statute to jury the principle requiring determine, the death that a murder as a to precondition imposing penalty, heinous, (Miss. atrocious or cruel” Code Ann. “was 99-19-101 especially § 367, U.S._[117 1130]) (5)(h); see 503 Stringer, supra, not have to about statute that directs merely does clearly anything say consider relevant evidence. A statute like the former (Mississippi’s) to (“heinous, murder) cruel” is declares that a act atrocious or particular and, thus, (death) an in a manner resembles closely punishable particular standard, that criminal which Godfrey requires ordinary prohibition. standards” for distin- criteria “clear provide objective death-eligibility when the death is and is not (Godfrey guishing appropriate 405-406]), is 446 U.S. at pp. pp. 427-429 Georgia, standard that courts have whether long to the analogous vagueness applied, Fourteenth, that under the Amendment or the to statutes apply conduct. criminal penalties specified contrast, (California’s) directs the a statute like the latter merely jury’s who has

attention to the of evidence that make defendant types already more or less deserving been found for most serious . free to whatever moral or . . leaving assign penalty, juror “[e]ach value he deems to each and all of the various sympathetic appropriate (1985) 541 Cal.Rptr. . . . .” v. Brown 40 Cal.3d 709 (People what, if Godfrey It clear anything, P.2d immediately has to about such a statute. say standard

Thus, while I that it is to read possible saying acknowledge factors that vagueness analysis sentencing applies death, after the defendant has been found eligible come into only play Moreover, if the court was addressing is far from obvious. that reading when it condemned the use of vague factors such as California’s 503 factors in the (Stringer weighing process vague have challenged aggravating factors as petitioners 1Recent cases in which have find at least one under which the sentencer must Mississippi’s, involved laws similar to against mitigating evidence. weighing factor or factors aggravating factor true before such (1992) [interpreting 528] v. Lewis 0Richmond law, only if at least one of 10 may imposed be Arizona under which “[t]he (Arizona (1993) P.2d Ariz. 8 [857 v. Kiles statutory aggravating circumstances exists” U.S._ 13-703(E)]; 1223]; Espinosa Florida Stat. Ann. § see Ariz. Rev. law, may be the under which “death [interpreting Florida 112 S.Ct. 2926] if, if, statutory aggravating factor is one at least appropriate recommendation 1, 4; 921.141(2)(a))].) (Fla. 1992) § see Fla. Stat. (Dougan So.2d v. Florida established” 382, 1139]), at then so in U.S. at 112 S.Ct. at it did p__[117 p. p. far clear in a that was from case that did not raise the issue. language The in this case reflects majority’s opinion Stringer’s ambiguity as applied In to California law. its first 30 that demonstrates pages, majority does not here “defendant’s contention that the Stringer support sentencing factors section to 190.3 of California’s scheme are subject 420, ‘vagueness’ analysis Godfrey v. Georgia, ante, 474.) v. Maynard Cartwright, supra, (Maj. U.S. 356.” at I opn., p. believe this is correct and concur in this accordingly part opinion.

However, after its announcing conclusion the it with the majority qualifies statement, inconsistent, not, however, I which find that do suggest “[w]e Amendment Eighth no standards whatsoever on those sentenc- imposes factors in section our ing 190.3 law can serve to ante, 477.) aggravate (Maj. at The then on penalty.” opn., to majority goes a new create Amendment Eighth vagueness standard that applies, apparently, to only sentencing factors that come into a after defendant play has already been found for death. to the According factors majority, “[s]uch violate the Amendment if are or if they insufficiently specific direct the they sentencer to facts not relevant to the evaluation.” ante, 478.) at (Maj. opn.,

The bases the new majority vagueness People standard on Tuilaepa (1992) 4 382, Cal.4th 569 842 P.2d In Cal.Rptr.2d Tuilaepa, however, Instead, we not did to announce such standard. we purport merely without that section 190.3 “[a]ssum[ed] subject [was] ‘vagueness’ concerns” articulated in [the] Stringer (Tuilaepa, and, 594) Cal.4th based on that concluded sen- that our assumption, (id. factors were not tencing 595). new vague By creating vagueness standard the majority goes much farther than we today went Tuilaepa. also finds majority for its new support standard in vagueness Stringer ante, itself. (Maj. 477.) opn., But in view of the earlier majority’s conclusion that the vagueness articulated in analysis does not Stringer apply factors, to California’s it is difficult for me sentencing to understand how is an citation. Either Stringer to our appropriate Stringer applies sentencing factors or it does not.

This, view, we should how resolve instant case: my Properly factors; nothing has about California’s interpreted, say sentencing does, but the sake of that it our are argument for assuming sentencing found this to be approach We have satisfactory prior vague. opinions 705, (1993) v. Montiel 5 Cal.4th People Cal.Rptr.2d (e.g., 1277]; (1993) 5 Cal.4th 465-466 People Cal.Rptr.2d P.2d Sims 992]; 4 Cal.4th People Stansbury 853 P.2d 1071 [17 756]; 846 P.2d 4 Cal.4th at People Tuilaepa, supra, Cal.Rptr.2d pp. 594-595), in those that our and I the reasons stated agree opinions contrast, factors are not bur- vague. majority’s approach with a new dens California’s criminal law requirement that will affect no other state because of the limited value of our precedential on matters of federal law. Because our show that we decisions prior opinions satisfy need not take such a to ensure that our step judgments Amendment, I would not take it.

MOSK, J., I concurin the Concurring Dissenting. judgment. (1991) was before in v. People

When this cause us originally Bacigalupo 335, (hereafter.- 1 Cal.4th 103 820 P.2d sometimes Cal.Rptr.2d 559] reverse, I), I found no reason to was of the view that the Bacigalupo having death, (Id. the sentence of should be affirmed. at judgment, including pp. Mosk, (conc. J.).) (1992)_ 152-154 opn. Bacigalupo California 5, U.S._[121 L.Ed.2d 113 S.Ct. the United States Court Supreme our and remanded the for further consideration vacated cause us judgment _ (1992) in v. Black 503 U.S. light Stringer consideration, (hereafter sometimes After such and having Stringer).

1130] reverse, I still found no reason to remain of the view that judgment be should affirmed. however, I Both the and the as to dissent. disposition, majority

Except declare, or does not more less concurring openly, Stringer apply justice For reasons I cannot to the California death law. Both are error. fathom, United States Court and flout the they authority Supreme for writ of of defendant’s inevitable petition thereby guarantee granting certiorari, The court been unforeseeable has risking consequences. (See, recalcitrant. Yates e.g., to intervene when lower courts have been quick 1884].) 111 S.Ct. It will v. Evatt 500 U.S. 391 [114 Otherwise, Indeed, it will all in this case. it must. expose do same surely inflicted on to the same ill treatment here Stringer. its decisions I held that “if a State uses the United States Court

In Stringer, for the death penalty who shall be eligible factors which as a practical it cannot use who receive the death penalty, shall of the Eighth in contravention matter fail to the sentencer’s discretion” guide Black, Amendment. 503 U.S. at (Stringer p._[117 p. 1139].) 112 S.Ct. at The do court declared: our Stringer “Although precedents require factors, use of have not which aggra State they permitted factors are decisive to use factors of content.” vating vague imprecise Black, (Stringer supra, 503 U.S. L.Ed.2d at p__[117 1139].) at p.

The court “A Stringer explained: vague aggravating employed whether a defendant is purpose determining fails to channel the sentencer’s discretion.” (Stringer 112 S.Ct. at court further: “A vague factor used explained worse, is in a sense for it creates risk weighing process that the jury will treat the defendant as more of the death than he deserving penalty might otherwise be the existence an by relying . . . upon illusory circumstance. use of a factor in vague aggravating creates the weighing [T]he process possibility randomness but also bias favor of the death Black, . . . penalty .” v. (Stringer supra, U.S. at at 503 L.Ed.2d p._[117 382, 112 1139].) p. S.Ct. In this an factor is regard, aggravating vague if it does not . . . inform what must find “adequately juries they impose 356, the death . (1988) . . .” (Maynard v. 486 Cartwright U.S. 380, 372, 361-362 L.Ed.2d 108 S.Ct. sometimes 1853] [hereafter Maynard].)

To cast the Stringer court’s in somewhat A explanation different words: factor “vague for the aggravating whether employed determining purpose a defendant is eligible blurs the line that defines the penalty” Black, class death-eligible. v. U.S. (Stringer supra, 503 at p._[117 382, L.Ed.2d at 112 S.Ct. at its For a part, “vague aggravating used in factor to determine a will weighing process” whether defendant actually receive the death undermines individualized sentencing the members of the among (Ibid.) class. death-eligible factors, The Eighth Amendment’s proscription against vague aggravating out in as set (1980) arose in v. Stringer, U.S. evidently Godfrey Georgia 398, (hereafter 100 S.Ct. sometimes which Godfrey), [64 L.Ed.2d 1759] reviewed an aggravating factor used to a determine whether defendant was for the eligible followed penalty. Godfrey Maynard was by Cart supra, 486 U.S. wright, 356. The was extended that proscription decisions considered aggravating factors used to determine whether defendant would actually receive the death often penalty. Stringer, is proscription indicated reference to by Godfrey Maynard, whether the aggravating and/or question (See for either or both employed purposes. Stringer Black, 376-383, 503 U.S. at L.Ed.2d at pp._-_[117 pp. in substance pp. [holding Godfrey Maynard 1135-1140] govern

both definition of the class and individualized death-eligible Indeed, members].) its among 1990 the court had for granted “[taken] ... that if a proposition State uses who aggravating shall be the death or who shall receive the death penalty, it cannot use factors which as a matter fail to practical guide sentencer’s discretion” in contravention of the Amendment. (Stringer 503 U.S. S.Ct. at p--[117 italics added.) __, 411, 420, In Richmond v. Lewis U.S. 528, 534], which was decided the term following and effec- decision,

tively the court explicated declared that the “relevant Eighth First, Amendment law is well defined. statutory factor is if it fails to furnish unconstitutionally vague for the principled guidance See, choice between death and a lesser penalty. e.g., Maynard v. Cartwright, (1988); 361-364 Godfrey 380-382] Second, (1980). Georgia, 427-433 405-409] State, in a where the ‘weighing’ factors are mitigating other, balanced each it against is constitutional error for the sentencer to give factor, other, to an weight even if valid unconstitutionally vague aggravating factors obtain.” It should be noted that was not a unanimous decision. The Stringer substance, was, therein question presented “whether in a federal habeas a corpus proceeding foreclosed from on” the petitioner relying [was] Amendment’s factors on the proscription against vague aggravating ground Lane, that it amounted to a “new rule as defined in Teague (1989)” if a that applied judgment 1060] Black, became final in 1985. 503 U.S. at (Stringer p. [117 L.Ed.2d at 112 S.Ct. at There was a majority opinion, answer; which a it was authored Justice and gave negative by Kennedy White, Blackmun, Stevens, Chief joined Justice and Justices by Rehnquist (Id. 375-383, at O’Connor. L.Ed.2d at 112 S.Ct. at pp. pp. J.).) for the court There was- also a pp. (opn. by Kennedy, 1133-1140] answer; which would have an affirmative it was dissenting opinion, given (Id. authored Justice Souter and Justices Scalia and Thomas. at joined by - 383-390, (dis. 112 S.Ct. at pp. pp. pp. 1140-1146] Souter, J.).) of opn. it

But more for should also be noted that important present purposes, the members of the court were in fact unanimous as to existence Stringer vague aggravating against proscription Amendment’s of the least since 1990— all factors—at such its applicability general (See or both. death eligibility to determine whether used 375-383, pp. U.S. at pp__-_[117 J.); id. at pp._-_[117 the court by Kennedy, for (opn. pp. 1133-1140] Souter, 383-390, (dis. of opn. 112 S.Ct. at pp. 1140-1146] pp. J.).)

II circumstances” factors”—labeled “special California uses “aggravating 190.2, who shall be (a)—to decide subdivision Penal Code section murder in a found guilty “The for defendant death penalty. life for a term of in state be death or confinement prison the first shall degree or more of’ certain case in which one any without possibility parole (Pen. to be true . . . .” has been found . . . circumstances specified “special Code, 190.2, (a).) subd. § label in very also uses factors”—bearing

California “aggravating “In who shall receive the death penalty. section decide Penal Code 190.3—to of’ shall take into account any the trier of fact determining penalty, relevant . . .” “factors if . and mitigating” certain “aggravating specified consider, Code, into account take (Pen. 190.3.) trier of fact shall § “[T]he circumstances specified] and mitigating [as and be guided by , if trier of fact concludes of death the . . and shall sentence . impose If the circumstances. circumstances outweigh mitigating the aggravating circumstances outweigh trier of fact determines that the mitigating the trier of fact shall sentence impose circumstances life without the possibility confinement in state for a term of prison (Ibid.) parole.” that, “uses aggravat inasmuch as California

It follows from foregoing be who shall deciding factors”—labeled circumstances”—“in ing “special , which as a practical . . it cannot use factors for the death . eligible the Eighth in contravention of fail to the sentencer’s discretion” matter guide Black, L.Ed.2d at p. U.S. at supra, p._[117 Amendment. v. (Stringer must be circumstances 1139].) special 112 S.Ct. at our p. Consequently, defined. clearly here, “uses as California inasmuch and of importance

Similarly, particular who shall . . . deciding that label—“in very factors”—bearing aggravating matter which as a practical it cannot use factors receive the death penalty, of the Eighth in contravention discretion” fail to sentencer’s guide Black, Amendment. v. at at supra, 503 U.S. (Stringer p._[117 p. 1139].) at our must factors too p. aggravating Consequently, be defined. That means that must inform . . . clearly they juries “adequately what must find to the death . . they (Maynard . .” impose 380].) 486 U.S. at L.Ed.2d at supra, 361-362 Cartwright, pp.

IH The and the with the rea- concurring majority justice generally disagree this, and conclusions set forth above. In err. soning they To the extent that the and the state or majority concurring justice imply that factors under California law need not the function aggravating perform who shall be are deciding penalty, they plainly correct. Our circumstances that task. The Amend- special accomplish ment does not demand misunderstand defendant to redundancy. majority claim our must func- factors perform death-eligibility In this his references to regard, Godfrey tion. mistake they apparently above, court, Maynard. Godfrey As noted in the view of the Stringer not definition of the class but also Maynard death-eligible govern only Black, (See supra, individualized its members. sentencing among 376-383, 112 S.Ct. at pp. 503 U.S. at L.Ed.2d at pp. pp. here, 1135-1140].) For I need note the misunder- purposes only majority’s further before the Defendant will the matter standing. surely explicate Court on certiorari. United States Supreme

To the extent that the and the state concurring justice imply majority defined, under California law need not be clearly factors founder on They Stringer. are incorrect. they plainly a State”—like California—“uses To words: Stringer’s plain repeat “[I]f it . . who shall receive the death penalty, . fail to the sentencer’s which as a matter guide cannot use factors practical Black, Amendment. (Stringer in contravention of the Eighth discretion” 1139].) at 503 U.S. at p._[117 rationale: use of vague aggravat To rehearse Stringer’s express “[T]he of ran creates the factor in the weighing possibility ing process . . . .” (Stringer in favor of the death penalty domness but also bias 112 S.Ct. p. “the circumstances factor comprising that our aggravating Let us assume invite consideration that it may Let us further assume the crime” is vague. ain of, membership his a physical say, repulsiveness defendant’s and/or of “randomness” we the threat Could dismiss group. disfavored religious on the defendant the death penalty imposition in the actual “bias” and/or for that sentence? eligible that he was nevertheless asserting by simply offense to the Eighth least not without not do so—at we could Manifestly, Amendment. little about points too say of their majority

In course opinion, a Indeed, crucial holding: “[I]f barely acknowledge Stringer’s matter. they . . . who factors in deciding California—“uses aggravating State”—like a factors which as practical death it cannot use receive the penalty, shall of the Eighth discretion” contravention fail to the sentencer’s matter guide Black, L.Ed.2d at supra, p._[117 Amendment. (Stringer existence the very Only by effectively denying 112 S.Ct. at p. is silent... on Eighth can assert that “Stringer of these words plain they as” ours. (Maj. opn., factors such Amendment requirements ante, 476.) at p. time, much about that do

At the same too say points majority do, on Eighth as matter—presenting, they general disquisition and the California death law. jurisprudence penalty I, under that the factors In defendant contended Bacigalupo proscription against law are to the Amendment’s subject Eighth California “Under decisions of therein the claim: rejected vagueness. majority Court, evalua- Amendment’s ‘vagueness’ United States Supreme circumstances ‘those tion . . . has been statutes govern applied that make a criminal defendant for the death “eligible” penalty.’ [Citation.] here, 190.3, The statute at issue section does not those govern [Penal Code] scheme, circumstances. Under the death the determination California penalty that a defendant is is made when the finds jury eligible to be true. circumstance special allegation Code] [Citations.] [Penal [sjection the circumstances a defendant making 190.3 does not govern for the but instead to the sentencing stage death eligible pertains for the eligible which the decides ‘from that class among persons [of ” to death.’ death those defendants who will be sentenced actually penalty], 148.) 1 Cal.4th at CPeople v. Bacigalupo, noted, a State the United States Court held: Stringer, “[I]f who shall be for the uses factors which as shall receive the death it cannot use penalty, who matter fail the sentencer’s discretion” contravention practical guide _[117 503 U.S. at Amendment. (Stringer added.) italics Bacigalupo California, supra,_U.S._[121 32], noted, as also the United States Court remanded the cause Supreme us, after our for further consideration in vacating judgment, Stringer. light What it desired to do us is correct error that plain: appears Rather, from I. The to do refuse so. as passage quoted Bacigalupo majority above, a stated on they present general disquisition discussion, and the California death law. In their jurisprudence penalty moreover, For it is not the case that a “death- they go astray. example, criterion” that does not “include some “is eligibility narrowing principle” deemed under the Amendment.” impermissibly vague (Maj. opn., ante, Rather, added.) italics it is overbroad.

For his to construe part, concurring justice initially attempts Stringer state uses factors both applicable aggravating determining if decision, however, death and That cannot be eligibility penalty. simply limited to such “dual use” factors without intolerable violence to its words. It “if a State uses factors in plain expressly governs who shall be for the death who shall receive the deciding eligible penalty death . . . .” U.S. at supra, 503 penalty (Stringer added.) 112 S.Ct. at italics The next to avoid concurring justice distinguishing attempts Stringer by death law from California’s. Mississippi’s penalty

He first tries to law California distinguish Mississippi by construing who be to use both shall Mississippi who receive the death He shall actually penalty. fails. law determines death conviction of through capital

Mississippi eligibility murder, (See without factors. mitigating consideration any aggravating accord, 1991).) It then 97-3-19(2) (1993); ibid. (Supp. Miss. Code Ann. § time, which, for the first such determines at a sentencing phase accord, id., (See (1993); ibid. (Supp. factors come into 99-19-101 play. § 1991).) (Miss. 1991) So.2d the Mississippi In Ladner v. State narrowing Court The “constitutionally required explained: for the accomplished class persons eligible jury’s in the .... definition of offenses guilt phase [T]he legislative capital is not constitutionally required.” further in the narrowing sentencing phase law the death sentence it “Under court got right: Mississippi murder.’ . . . as ‘capital murders statute designated by be may imposed conviction, system in the Mississippi murder the jury Following

491 a defendant who has been the of the case. For to phase proceeds sentence, the death the must find jury murder to receive convicted factors, it must determine and then eight statutory aggravating at least one of the mitigating that the factor or factors are not outweighed by aggravating circumstances, at if any.” (Stringer [117 375, 112 p. 1134].1 then tries to California and Mississippi The concurring justice distinguish to use factors that are not aggra- law California construing aggravating but, were, which at all it mere the through factors vating transparent panes He evidence be viewed. fails. may again in for the to the concurring deny

It is too late simply day justice under nature and crucial function of the factors aggravating substantial he him California law. with the factors—to words Along mitigating quote self the “framework for the exercise of used—they provide jury’s] [the discretion” and “assist the defendant’s conduct placing particular 57, (1987) v. Miranda 44 Cal.3d 104 (People Cal.Rptr. perspective.” [241 594, Panelli, accord, (1991) J.); 744 P.2d v. Cox 53 Cal.3d People (per 1127] 618, 692, see, Miranda];, e.g., 809 P.2d Cal.Rptr. [quoting [280 351] (1992) v. Mitcham 1 Cal.4th 824 P.2d People Cal.Rptr.2d 210, 230, Miranda]; (1990) fn. v. Haskett 52 Cal.3d [following People 1277] Panelli, J.) 801 P.2d that our [stating aggra Cal.Rptr. (per 323] define vating jury’s] sentencing mitigating “statutorily [the function”].) sum, and the cannot “deconstruct” majority concurring justice either the existence of the Amendment’s

Stringer by denying pro- Califor- scription against vague aggravating factors or its applicability nia death law. The was common for both the ground proscription above, and the dissenters in all the majority As noted members of Stringer. court both the and its existence recognized proscription factors, to all whether used for death general applicability aggravating or both. What the and the dissenters eligibility majority passing concurring justice’s analysis 1 Inote in that the make own would California indistinguishable reasoning, law Mississippi substantially aspect. in relevant Under his both states would have to be deemed to use factors in both who shall be eligible actually penalty. for the shall receive the death He discerns and who Mississippi one “dual use” because sentencer there must find least reasoning, he discern may actually punishment By parity before it fix the at death. must effectively find at least one such “dual use” in California because the sentencer here must (See (1985) People may actually punishment fix the v. Brown factor before it death. 512, 541-542, grounds Cal.Rptr. revd. on other sub Cal.3d fn. 13 P.2d nom. v. Brown 479 U.S. 538 California was “new Stringer disputed whether the amounted to a simply proscription rule” that could not be relied on in a federal habeas corpus proceeding by therein, True, whose became final in petitioner judgment proscrip- 1985. tion arose with determine factors used to evidently regard whether a defendant But it has been penalty. extended to reach factors used to determine whether a defendant aggravating will receive the death actually penalty.

Neither can the Stringer's plain or delete majority concurring justice words: a State”—like California—“uses aggravating “[I]f . . . who shall receive the death it cannot use factors which as a penalty, matter fail to the sentencer’s discretion” contravention of practical guide Black, Amendment. v. (Stringer supra, Eighth p._[117 381, L.Ed.2d at 112 S.Ct. at Stringer's and the cannot avoid

Finally, majority concurring justice rationale: use of a factor in the express vague aggravating weighing “[T]he creates the of randomness but also of bias in process possibility (Stringer supra, favor of the death . . . .” 503 U.S. at p__ v. 1139].)2 L.Ed.2d at 112 S.Ct. at [117 attempt aggravating comprising 2In an evident “the circumstances of the save factor invalidity Eighth ground vagueness—an crime” under the Amendment on the from that, aggravating strictly speaking, majority not before the court—the sub silentio is (1991) People Cal.Rptr.2d overrule Edwards 54 Cal.3d 787 819 P.2d 436] v. (hereafter Edwards), People Tuilaepa adopt place in its v. Cal.4th 569 sometimes (hereafter Tuilaepa), granted certiorari Cal.Rptr.2d 842 P.2d sometimes 1142] California, Tuilaepa United States Court Docket December sub nomine 563, 114 S.Ct. 598]. No. 93-5131 Edwards, question. factor in The majority of this court construed merely spatial circum majority that it “does not mean the immediate and

Edwards stated crime,” morally, materially, or rather “extends to which surrounds stances of but ‘[t]hat Edwards, 833.) clarify or (People supra, 54 Cal.3d at It did not logically’ the crime.” Indeed, “explore outer reaches . . . .” expressly delimit its construction. it declined [its] (Id. 835.) p.at vague is under the factor as construed Edwards It is manifest this what it just therefrom was jury—or anyone, for that matter—divine Amendment. Could True, believe it must ascertain penalty? might the death it impose to find order to required morally, logically.” or But whether “materially, the crime something whether “surrounded” theoretically indetermi- “materially, morally, logically” something a crime “surrounds” Indeed, whether the meaningless. might it reach matters such as practically nate and Hemisphere under been bom in the Southern defendant—like defendant here—had astrological sign of Libra. “especial aggravating factor that the crime was invalidated an The Amendment has atrocious, heinous, pp. 486 U.S. at 360-366 (Maynard Cartwright, ly or cruel.” 379-383].) pp. was factor that the crime invalidated an Eighth Amendment has also ” “ vile, (Godfrey Georgia, ‘outrageously wantonly horrible or inhuman.’

IV above, I For all the I in the judgment, reasons stated concur although insubordinate, erroneous, dissent from declaration colleagues’ my law. does not to the California death apply Stewart, J.); pp. pp. (plur. opn. by pp. 427-433 id. at 433-442 405-409] Marshall, (conc. J.).) at pp. opn. 409-415] fortiori, aggravating comprising A Amendment must invalidate the factor “the juries adequately circumstances of the crime” as construed in If are informed as Edwards. they impose they to what find in must order to the death when are told to determine heinous, atrocious, whether the crime was “especially “outrageously wantonly or cruel” or or vile, inhuman,” horrible they they merely are not informed at when are all directed “ Edwards, materially, morally, logically’ (People which surrounds the crime.” ‘[t]hat 833.) supra, at p. Tuilaepa, majority Little better than Edwards that the to embrace as decision rush they Tuilaepa, contemplate majority aggravating the void. In of this court construed the commonly in question specific, provable, factor to “direct the sentencer’s attention to might understandable facts about the defendant and the crime that bear on his moral Cal,4th 595.) (People culpability.” Tuilaepa, “specific, provable, What commonly say. understandable One cannot to determine whether such “facts” facts”? How too, culpability”? say. “bear on moral Here one cannot [the defendant’s] Edwards, question majority’s overruling I do not reach the whether the and their Tuilaepa adoption place, enough invalidity in its are to save this factor from ground vagueness. press under the Defendant will no doubt on (1993)_U.S. issue before the United States Court on certiorari. Arave v. Creech 188, 200, ___[123 recently court held: “If the every fairly applies sentencer could conclude that an circumstance defendant (Italics original.) penalty, constitutionally circumstance is infirm.” question. Apparently, a sentencer could so conclude as to the

Case Details

Case Name: People v. Bacigalupo

Court Name: California Supreme Court

Date Published: Dec 7, 1993

Citation: 862 P.2d 808

Docket Number: S004764. Crim. No. 26404

Court Abbreviation: Cal.