*1 Aug. No. 21721. [Crim. 1981.] PEOPLE, Respondent,
THE Plaintiff DAVIS, Defendant Appellant. MICHAEL DARRELL *5 Counsel Appellant. for and Defendant
Barney Goldstin Schulman, Defender, Denvir, Deputy and Edward State Public Quin and of Defendant Defender, Amici Curiae on behalf as Public State Appellant. Philibosian, General, Chief H. Robert Attorney
George Deukmejian, Moore, Attorney Gener- General, Assistant Clark S. Attorney Assistant Anderson, R. Hahn, Weisman and Robert R. al, R. William Gary General, Respondent. Plaintiff and for Attorneys Deputy (Kern), E. Margaret Spencer, and Attorney M. District Leddy, Albert and behalf of Plaintiff Curiae on as Amici Attorney, District Deputy Respondent.
Opinion defendant, Michael Darrell
MOSK, J. 16-year-old trial After a jury Davis, 13-year-old first murder rape degree was convicted con- defendant was also victim’s age, Because Morgan. Deboruh child the age act on a under lewd and lascivious victed of committing true. found to be were special charged of 14. Two circumstances (iv).)1 de- (Former 190.2, (c)(3)(iii) Hence Code, Pen. subds. § (former fendant, death penalty who from the exempt as a minor to life 190.5), a penalty hearing was sentenced without automatically § (See seq.) former 190 et of parole. without imprisonment possibility § the police procedures legality On defendant appeal, challenges elicited, a denial of his right which his and asserts confession by no will we find constitutional important appear confront an witness. As circumstances, affirm the conviction. violation these and therefore However, imprisonment we of life find the sentence case, reduce the in this and therefore unauthorized statute parole life provide imprisonment. sentence for a term of
I confession, Defendant was convicted on the basis primarily *6 were which facts: Defendant and victim established following p.m. September Park at 5:30 on walking Houghton approximately alone, hit 1978. After him to leave her the victim repeatedly telling angry, defendant her notebook. Defendant became grabbed hat, hat, As after de- victim’s and it in the bushes. she went threw into the area and choked her until she fendant followed her secluded and, raped was He then her when she started to show signs unconscious. consciousness, her he was still angry because regaining strangled had feared she would tell others what he done. statute, (Stats. repealed. since arose the 1977 death 1This case under 7, 1978.) Unless otherwise not repealed by approved Measure Nov.
ch. Initiative Code, ed, Penal and all to former statutory herein to the citations all citations refer refer 1977 statute. sections to the code of his admissibility to separate challenges Defendant makes three (1) the fruit of an il the confession was He contends confession. cause, seizure, (2) probable made without the fruit of an arrest legal not persuasive. The contentions are involuntary. station for police to transportation Defendant first maintains On Sep- of the Fourth Amendment. was a seizure violative questioning Collette, 28, 1978, a local was Officer telephoned by tember defendant if The officer asked defendant detective the murder. police investigating incident. Defen- to discuss the meeting he would be to willing arrange meet the officer in Houghton made an to appointment dant agreed the ap- arrived promptly Park at the next afternoon. Defendant 2:30 friend, from the apparently accompanied by time and pointed place him wished to officers who met school. Because the two nearby high was crowded with park and because the with defendant speak privately, students, if defendant would be willing Officer Collette asked other After a brief discussion for the interview.2 police come to the station friend, nervous or appear he did not go; with his defendant agreed route, concerned, En defendant and the Collette. Officer according football, and the pre- in a conversation about officers engaged friendly At the station defendant voluntarily sent crimes were not mentioned. with the the incident. officers about spoke (1978) 442 v. New York U.S. Dunaway
Defendant contends that the conclusion that an arrest 2248], compels L.Ed.2d 99 S.Ct. case, the to the station. In that transported police when he was occurred was involved suspicions Dunaway, teenager, had police vague cause, decided to arrest they the absence of Despite probable a robbery. him ac him at a residence and asked neighbor’s him. located They him that he was free to informing them to station company were prepared refuse. he consented to their request, they Although Without which restrain him if he did not cooperate. revealing physically determinative, held that defendant these facts it found court high (Id. at of the Fourth Amendment. purposes seized for thereby L.Ed.2d at p. p. First, in Dunaway on two grounds.
The case is present distinguishable *7 leave, have as- may incorrectly to he although the was not free suspect 207, (see, id. at pp. relied on that fact heavily sumed he was. The court interviews, crime, 80 police conducted investigation of the the of their 2In the course place police at the station. least 12 of which took at
821 832, 835, finding 212, 215, 837]), apparently 17 fn. L.Ed.2d at pp. [60 his of ac- was of freedom deprived it that proof suspect persuasive would have not they Because officers admitted candidly tion.3 to leave, was little need he there released the had suspect requested his of the situation. into perception inquire
Here, hand, that at the time of Collette testified on the other Officer defendant, did not intend to arrest park in the he voluntary meeting that no proof free to if he so Defendant offered who was leave desired. Consequently, restraint. physical was restrained or threatened he actual deprivation court conclude that no justifiably the trial could freedom occurred. to be
Second, in Dunaway was not as likely suspect defendant as he his freedom of action. deprived convinced that was reasonably who ask police when confronted teenagers, unexpectedly Some station, submis- to be intimidated into likely be to the are accompanied of uniformed presence the sudden and imposing sion virtue of simply by tele- by Officer Collette spoke But this defendant authority. initially not meet with officers immediate- phone, and was asked if he would time place chose both the but at convenience. Defendant ly, 3“[C]ustody suspect physically deprived of his freedom of action in occurs if the believe, any significant way person, deprived.” that he is so or is led as a reasonable 115, 438, 515]; (1967) 426 see (People v. Arnold 448 P.2d [58 694, 1602, 10 also Miranda v. L.Ed.2d S.Ct. Arizona U.S. [16 A.L.R.3d emphasis Dunaway, intent Despite placed on evidence of the officers’ case, L.Ed.2d more recent States Mendenhall 446 U.S. United [64 high 1870], significant regarding present 100 S.Ct. doubt attitude of the raises Mendenhall, Stewart, joined Rehn court toward such quist, In Justice Justice evidence. occurred, position deciding has sole took the that whether seizure being determining perception suspect, factor reasonable the officers’intent is the (Id. except conveyed [suspect].” been to the at may “irrelevant p. insofar as have [it] Stewart, Marshall, Brennan, J.).) p. (opn. fn. 6 L.Ed.2d at Justices 509] joined concluding White’s the officers’ intent to arrest and Stevens the Justice dissent that conclusive, and pp. Justice suspect important, if not evidence of seizure (Id. Dunaway. at 574-575 opinion could not be reconciled with Stewart’s White, J.).) remaining justices (dis. opn. joined The in the pp. at L.Ed.2d 522-523] finding portion suspect opinion upholding of Justice trial court’s Stewart’s despite accompanied then arrest evidence of voluntarily the officers and was not under Nevertheless, necessary. opinion by in an Jus her if the officers’ readiness to restrain Powell, position regarding they declined to Justice Stewart’s expressly tice take (Id. fn. perceptions. p. L.Ed.2d suspect’s of focus on the reasonable exclusive at the case at States Powell, J.).) although distinguishable (conc. opn. Dunaway is from Hence p. 513] intent, it the United bar on of the officers’ is unclear whether the basis significant in deter the distinction as a factor Supreme Court continues view custody. mining suspect or is in when whether the *8 interim, what
the In the he time to consider he meeting. ample had ask, with anticipate par- would to what the would to consult say, police others, person ents or or to the Even a altogether. cancel appointment defendant, enforcement, it inexperienced law like would find im- that officers who intended to arrest him would call in advance plausible and ask him to time and for that place purpose. name convenient defendant had little reason to believe the officers intend- Consequently, ed to him in and the trial court was in place custody, justified in that defendant was in until later the concluding actually custody not (Cf. (1968) 258 investigation.4 Cal.App.2d Butterfield Cal.Rptr. 765].) probable Defendant next contends the lacked cause ar police rest him the time him he was under arrest. A review at informed they the at that time the trial possessed by police supports information the court’s that arrest was valid. the ruling
The that victim officers were aware the had been strangled ap- the in sometime on 15. parently park evening September the raped shoes, pants, had found the victim’s and a notebook They containing bushes from the yards several names and addresses the some body of the victim. defendant, the school
Suspicion high adja- focused on who attended he the that saw police cent to when a schoolmate informed park, the the the in the on the 15th park evening defendant and victim walking that the victim and defendant were reported at 5:30. He approximately from away that victim told defendant repeatedly get the arguing, an he not identi- hit could object her. He saw victim defendant and the where defendant park, The witness then left area of fy. an- corroborated partially victim This information remained. male, she and a who saw female police witness told other about 5:30 park description, arguing fitting defendant’s generally me, exclaim, get from away “Get heard female p.m. angrily She to posi- was not able too witness rough.” Although away. play You ques transportation subsequent claim that 4Defendant makes the additional (See temporary tioning justifiable relevant detentions. were not under standards 957].) Dunaway P.2d Tony In re C. however, in which the clearly inapplicable those are cases implies, standards (Id. questioning. pp. 208-213 suspect transported police station for is Hence, suspect is not in 832-836].) police must either show that the pp. L.Ed.2d at arrest, preferred discussion of and defendant’s custody validly that he is under at all or inapposite. middle-ground temporary detention standards
823 defen- when school high yearbook, the male from the lively identify most the one that she said it was was out to her picture pointed dant’s she had seen. person resembled with a walking saw the victim they other that reported
Two witnesses time, was but one at the same park roughly male in the vicinity male, gave and other further give description unable any appearance. with defendant’s somewhat inconsistent description station, the officers informed arrival Upon police defendant’s at to talk. He he his expressed willingness him of his but rights, Miranda walking through park them knew the victim had been told he and her He described her with her on the death. evening about 5:30 her He notebook. clothing and revealed contents knowledge denied, however, hit him. or that the victim had they argued had this officer Col- point, He also declined to take a lie detector test. At lette informed him he was under arrest.
The basis for the trial evidentiary above facts constitute a substantial was Defendant’s ad- probable court’s conclusion that cause established. her mission that he was with the victim at the time of approximate death, wit- the inconsistencies between his and those of other story nesses, and the evidence he had been and possibly arguing victim, harassing person could in a care engender using ordinary (See suspicion strong that defendant had committed the crime. People 536, (1975) 384, v. Harris Cal.Rptr. 389 540 P.2d cited.) 632], cases
Defendant further contends that his waiver of despite Miranda rights before questioning commencement of just tape- confession, recorded that confession was both obtained in violation (1978) state constitutional v. Pettingill standards set forth 861, Cal.3d 231 Cal.Rptr. 578 P.2d in the 108], involuntary (See traditional v. Denno 378 U.S. sense. Jackson 368 [12 L.Ed.2d 84 S.Ct. 1 A.L.R.3d 1205]; People Jimenez Cal.3d 602-605 P.2d Defendant arrived at the station at He p.m. police approximately if if them and he would informed of his asked he understood rights, asked, nevertheless with the officers. In he was “Do speak you addition understand that don’t to talk to if don’t want to?” you you have us “Yes,” After all three with the of- questions spoke defendant answering hour, discussed them with the information ficers for an furnishing *10 then arrested him. Defendant was the of which then they above on basis test, When he sub- refused. initially to a lie detector and requested take so, alone to another room and left to do he was taken sequently agreed his read defendant with of the test. The administrator the administrator that he understood them. acknowledged and rights again, defendant however, administrator, to to talk the When asked whether he wished posture maintained that sat at the floor. He silently defendant staring as- once to questions, spoke only while he was asked several other deliberately “Did question, you he did not want to answer the sert that officers, the was returned to Morgan]?” investigating kill He [Deboruh and had questions he failed to to respond who were informed that had re- the test. The officers frustrated the effort to administer thereby his reiterated earlier statements. sumed and defendant questioning, terminated, and was taken At was defendant p.m. the interrogation Officer Collette then returned momentarily. to his cell and left alone he have dinner. Defendant appeared and asked defendant if wished to asked, to me sullen, then “Do want tell replied you but “Yes.” Collette truth, inquired, the Michael?” Defendant answered “Yes.” Collette nodded affirmatively. “Did kill Deboruh and defendant you Morgan?” After was to the room. interrogation Thereafter defendant returned confession, his he made full rights informed of Miranda being again At the af- responded then it on the end of defendant tape repeated tape. voluntarily if freely when asked his statement firmatively given. circumstances, trial court
From the
the
the
concluded
totality of
silent,
willingly
remain
and had
right
defendant
not assert his
to
did
de-
inexperience
sensitivity
youth
confessed.
our
to
Despite
(see
v.
fendant,
People
examination of
record
independent
on an
642,
562,
(1969)
451 P.2d
Cal.Rptr.
70 Cal.2d
571-572
Sanchez
did not err.
74]) we conclude the trial court
he
to
First,
speak
when asked if would
respond
defendant’s failure to
to
from the circumstances
does not appear
administrator
polygraph
remain silent. The absence
of his
to
right
have been
assertion
general
has been
right
establish that
of an
waiver does not
itself
express
369,
(1979)
375-376
(North
Butler
U.S.
invoked.
Carolina v.
541,
286,
v. Johnson
People
L.Ed.2d
Second, product to have been appears defendant’s confession volition, de- or coercion. pressure Although his own and not official minor, his alone does not establish that fendant was a fact 365, Cal.2d v. 67 was Lara involuntary. (People confession The evidence tended 378-379 432 P.2d Cal.Rptr. was into frightened was aware of his not rights, show that he fully fact, was attempt- In it he appears the officers’ behavior. submission by pretending cooperate his own to use the situation to ing advantage victim his on contact admitting fully by forthrightly his innocence. asserting bolster his evening credibility of her death to Collette, of the crime when defendant accused to Officer According her he wouldn’t have volunteered “if he had killed argued he and, he have secondly, me first wouldn’t park place meet in the also assured the come down to the station me.” Defendant police Furthermore, he no he desire “nothing expressed officers had to hide.” had parents, parents or his not told attorney contact an he not them to know of his appointment, apparently because did want (1971) v. Burton Cal.3d predicament. (Compare People (1978) 84 Cal.App.3d In re Patrick W. 793]; P.2d Although preferable practice 524-525 Cal.Rptr. 735].) adult before a minor responsible questioning to seek the consent of a Lara, 378-379), Cal.2d at the failure to do so pp. (People supra, this not defendant’s state under the circumstances of case did render involuntary. ment in which confession was elicited is somewhat precise
The manner Col of involuntariness. Officer compel but does not troubling, finding dinner, he then that he first asked defendant if wanted lette testified was not Although point if he would like to tell the truth. asked could appeal, sequence questions conceivably raised at trial or on *12 if he confessed would he be given that implied only have defendant obviously A in that manner would be involun food. confession obtained Jimenez, 611, 595, (See 21 Cal.3d and cases v. People supra, tary. 913, cited; v. 924-925 Cal.App.3d Gordon People testified, however, that Officer Collette Defendant Cal.Rptr. 91].) between mention of dinner of matters unrelated the crime spoke He also testified evoked confession. question ultimately and the that be he would de he believed otherwise that he did not confess because Moreover, had earlier defendant officers prived given of food. milk, not intend to withhold they that did demonstrating carton of thus tactic. food as coercive to the prosecu- in most favorable light
Viewing the facts disputed Jimenez, 595, 609), we agree (see supra, tion v. given. was voluntarily trial court that confession trial, preliminary allowed to introduce was prosecutor At Ete, de originally implicated witness who testimony of Iona hearing had fruitless. Defendant fendant, him been efforts to locate because adequate showing make an failed to attorney contends the district the witness for trial. unavailability establishing diligence due 719, 724-725 U.S. 1291; (Evid. Code, Page Barber § is without 259-260, The contention 255, 88 S.Ct. L.Ed.2d merit. Samoa, one although
Ete left in the area and was reportedly school to California and source informed the authorities he had returned searched for his address in San Francisco. The living prosecution members, re- searched school both locations and interviewed family records, but could not locate cords, and examined probation police these efforts error in ruling him. The trial court committed no sufficient.
II defendant’s sentence of life imprison The next issue is whether authorized.5 ment without parole legally authorizes of the death seq. imposition penalty Former section 190 et 1921, however, it has in certain first murder cases. Since degree (Former 190, as exempted minors from that extreme sanction. § 1; 190.1, 1957, 1921, 105, re- amended Stats. ch. former enacted § § 719, 3; 190.3, (a), subd. enacted pealed by Stats. ch. former § § 10; 190.5; present Stats. ch. former repealed by § § 190.5, 1978.) enacted does not also Although explicitly statute § exempt imprisonment possibil- minors from the sentence of life neither nor the of the statute ity parole, language history an harsh supports interpretation would authorize imposing on persons under 18. *13 The relevant are The first statutory provisions equivocal. provision, 190, former section sets out the for first and sec- permissible penalties second, 190.1, ond degree murder.6 The is the former section (Reed) Appeal, People Superior 5Because a recent decision of the of Court v. Court (1979) Cal.App.3d 310], charged 98 Cal.Rptr. 39 held that minors can be [159 special imprisonment possibility parole, circumstances and sentenced to life of properly appeal defense counsel conceded at trial and on that his client was sentenced. imposition statutory authority jurisdic But the of a sentence for which there is no is 11, 607, (Neal (1960) Cal.Rptr. tional error v. State 55 Cal.2d 16 357 of California us, 839]); P.2d pending hence if such an error comes to our attention in a case before it 753, 65, (1973) subject (People Cal.Rptr. is to correction. v. Serrato 9 Cal.3d 763 [109 cited; 301, 303, People fn. 1 Cal.App.3d 512 P.2d and cases v. Zubia 289] Cal.Rptr. degree penalties possibil three for first 6The 1977 act authorized murder—life with below, parole, explained As ity involving “special parole, possibility life without death. in cases penalties; circumstances” the choice is narrowed to the latter two in only penalty applies. first all other cases act, an over- providing cornerstone of the remaining provisions cases with degree be in first procedure view of the to followed murder penal- death circumstances allegations special possibly justifying in the other context and which sequence Before ty. dictating proper its limits expressly application sections are be section 190.1 applied, to to this imposed pursuant death be penalty may to cases “in which the subsequent sentencing render the to chapter thereby appears ...” and the subse- individually, Yet taken to minors. provisions inapplicable cases. For to death possible penalty are not limited quent sections 190.1, (a), the trier of subdivision authorizes former section example, if the death charges only on circumstances special fact to deliberate 190.4, (a), subdivision former section imposed, be while may penalty 190.1, (c), like- subdivision no such limitation. Former section imposes death hearing potential of a penalty wise restricts its authorization cases, 190.4, (a), such require seems while former section subdivision degree spe- case of first murder in after conviction hearing any be in one of two ways: The difference can explained cial circumstances. the limitation to death cases either the intended Legislature also to the other sections sum- in former section 190.1 apply stated therein, open or it left intentionally and organized marized involving not the other sections could cases apply death penalty.
In we are well-settled ambiguity, guided by principles resolving is which interpretation. language reasonably statutory “[W]hen of two is used law penal ordinarily constructions susceptible will adopted. which more offender be construction favorable doubt, is entitled to benefit of reasonable every The defendant [H] fact, it or true question interpretation whether arise out of a as (In used in a re of words or the construction of statute.” Tar language 553]; P.2d see also tar 256-257 [339 (1979) 24 Cal.3d Court Superior (Douglass) (1970) 2 P.2d Keeler v. Court Cal.3d 139]; Superior *14 617, 481, Further 420].) 470 P.2d 40 A.L.R.3d Cal.Rptr. [87 statute, unclear, more, if its are its when interpreting provisions we ascertain the intent of paramount: Legislature “should purpose (Select Base Materials v. as of the law.” purpose so to effectuate the 640, see (1959) 672]; 51 Cal.2d 645 P.2d also Equal. Board [335 789, 671, (1976) 552 CaLRptr. 17 Cal.3d 679 Tripp Swoap [131 if to do so would not be read literally P.2d The statute should intent of Legislature. about a result inconsistent bring
829
(County
(1978)
San
v. Muniz
Diego
29,
22
Cal.Rptr.
Cal. 3d
36 [148
584, 583
(1967)
666,
P.2d
Bruce v.
109];
Gregory
65 Cal.2d
673-674
265,
cited.) Moreover,
423
Cal.Rptr.
193],
P.2d
and cases
[56
statute should be construed as a whole to harmonize
con
any arguably
(Palos
parts.
Verdes
flicting
Assn. v. Palos
Faculty
Verdes Peninsula
(1978)
650,
Sch.
359,
Dist.
21 Cal.3d
659
580
Cal.Rptr.
[147
Unified
P.2d 1155];
(1961)
553,
Erlich v.
Court
55 Cal.2d
558
Municipal
[11
758,
must,
Cal.Rptr.
First and of the statute history reveals a clearly specific intent, limited legislative unrelated to desire to any impose harsher sanctions 1977, on minors. Until the statute two provided alternative penalties for first degree murder—the death and life in penalty prison (Former with the 190, possibility 1872, of parole. enacted as amended § 1873-1874, 508, Code 1.) 1973, Amend. ch. Until the choice of § punishment (Ibid.; was left discretion of the trier of fact. former 190.1, 1957, 1973, 719, enacted 3.) repealed by Stats. ch. As § noted § above, however, the has Legislature since 1921 immunized minors from the death penalty, their thereby fixing punishment for first mur degree der at life imprisonment with the After parole. landmark case of Furman v. Georgia U.S. 238 L.Ed.2d 346, 92 S.Ct. established 2726], that broadly discretionary sentencing rendered the of death a cruel and unusual penalty punishment, Califor nia, states, like other defined many of first subcategory degree murder cases involving particularly opprobrious “special circumstances” for (Former which 190, the sole possible sentence was death. enacted § 4.)7 repealed by Stats. ch. Minors were excluded § from the operation of the legislation because of their continued exemp tion from the death penalty. prohibition 7We held in 1972 that the death violated the state constitutional
against punishment. (People cruel or unusual v. Anderson *15 (1976) 18 Cal.3d v. Court Three in Rockwell years Superior later we down the California 556 P.2d struck Cal.Rptr. 1101], 420 [134 (1976) U.S. Gregg Georgia statute under the mandate of cases, its because companion and 2909], L.Ed.2d 96 S.Ct. of cir mitigating for consideration state law made no accommodation In sentence. a lesser impose the might persuade jury cumstances Rockwell, the Leg the Gregg strictures of comply an effort in 1977 to provide the death statute penalty islature amended weigh mitigating which the trier of fact could at separate penalty phase of life impris the sentence and impose circumstances aggravating death in appropriate rather than parole without onment (Stats. 1977, 317, 26) re ch. The clause of that statute cases. urgency § has Supreme Court “The California purpose: veals the Legislature’s This act reme law unconstitutional. existing penalty declared the death law, must to be in existing infirmities found dies the constitutional the the public protection in to guarantee take effect order immediately the Legisla law.” penalty Significantly, in death operative inherent an minors from the death exempting the unchanged language ture retained it (former 190.5), the slightest suggestion and made not penalty § as on minors an alternative new to be imposed intended the penalty enacted this statute the Clearly, Legislature life sentence. ordinary an convicted to minors applicable the penalty of increasing not as means murder, unconstitutionally a method to ameliorate but as solely exclu procedures applicable former death penalty effect of the harsh .8 sively to adults however, thereafter, Constitution Shortly Cal.Rptr. 493 P.2d of cruel interpretation amended, reading with a fixed prohibition replacing our of the then-current penalty by power authorizing death punishment or unusual I, Const., 27.) (Cal. art. public will. § legislation. People v. In of this recognized purpose the limited previously 8We have wrote 773], Justice Tobriner 588 P.2d Teron itself, Legislature court, and between “exchanges Legislature both in the for the vitally in Governor, involved at issue was legislation abundantly show that and the considerations, enacting criminal concerning appropriateness of policy substantive punishment California .... capital [H] authorizing imposition anew measures . statute, increasing thereby penalty Legislature to enact new death set out ... The might appro- be an it death believed degree murders which penalty first for those (id. 120) p. concurring opinion at Justice 117-119.) (id. pp. In at priate sanction.” remedy de- was enacted legislation ... agreed, stating, “The 1977 Richardson acknowledged that the in dissent also Justice Clark the 1973 statute.” fects in parole the possibility imprisonment life legislation introduced ” (Id. .... unconstitutional were declared penalty statutes mandatory death “Because 125.) p. *16 re- to the anomalous would lead Second, interpretation a contrary of guilt a verdict whenever hearing penalty of a quirement superfluous above, As noted a minor. is returned against circumstances with special a defen- (a), that whenever 190.4, requires subdivision former section circumstance special murder and a first degree is found of guilty dant ....” hearing “there shall true, penalty be a separate is found charge of from the sanction (Italics exempt are added.) But because they would be murder of death, special-circumstance found guilty minors a sep- thus parole; without of life to one subject only penalty, law, would the letter though required by arate penalty hearing, re- judicial waste of palpable and a be unnecessary, inappropriate Hence, mandatory to exception the omission of any sources. 190.4, (a), further demonstrates subdivision of former section language as a sen- without parole life provide the absence of intent legislative which the death penalty in those cases to alternative tencing except also might apply.9 whole, basis for it offers no
Third, read as a when the statute is above, noted former As circumstances. charging special minors circumstances special of a of disposition charge section 190.1 authorizes 190.4 former section And although in death cases. possible penalty only restriction, application the same authorization without contains requirement its own operation that section to minors leads by Moreover, be- we have discussed. just as meaningless penalty hearing, following viewed as a to the preface cause former section 190.1 can be sections, Legis- to be applied, the context in which are stating they its limitation in each have may repetition lature concluded context, Hence, viewed in be surplusage. section would subsequent of special determination authorizing of former section 190.4 language to cases adults involving circumstances restricted charges properly the death penalty. murder and subject first charged degree in- substantially intentionally if the had Finally, Legislature on be inflicted lawfully maximum that could creased the 48-49, (Reed), Cal.App.3d Superior supra, 9The Court court result, give potentially por when faced chose to no effect to the with the same absurd minors, applied requiring penalty phase tion of former section 190.4 as while subject charges special accepting question proposition that minors are language under other in the same section. For the reasons stated circumstances text, untenably part dismisses one of former section and because the Reed decision another, application disapprove its we of that case to 190.4 to make rational broad holding. present the extent that it is inconsistent with our *17 and set minors, clearly to its express purpose we would have it expected Instead, we review statute the in detail.10 out appropriate procedures v minors, silent to penalty applicable regarding unclear in its effect on the imposed would be on which the new penalty
appropriate procedures by the them, depart intent to from devoid of evidence of any legislative and in be resolved defendant’s must quo. Consequently, ambiguity status special for minors with authority charging no by finding favor circumstances. we it and af- penalty, insofar as relates is reversed
The judgment We that defendant’s order respects. in all other firm the judgment sentence alternative only to life imprisonment, be reduced sentence (Former 190.) statute. authorized by applicable § J.,* Tobriner, J., J., concurred. Newman, Kingsley, I concurin the ma- J., RICHARDSON, Concurring Dissenting. of first affirms defendant’s conviction to the extent that it jority opinion murder, lascivious act on commission of a lewd and rape and the degree dissent, however, from the of 14. I respectfully under the age child applicable of the stat- A careful review penalty. reversal as majority’s was sentenced to life that defendant properly me utes convinces possibility parole. of without imprisonment former Code sec- commenced with Penal The 1977 act at issue here of guilty stated that “Every person which unambiguously tion death, in prison suffer confinement state in the first shall degree murder in for prison confinement state parole, life without of or possibility for as in Sec- provided shall be determined applied life. The be added; (Italics 190.2, 190.4, 190.1, 190.3, further and 190.5....” tions ordinary vastly case actually spent prison in is increased in 10The amount time defender, According on aver public amicus is eliminated. possibility parole if the years. But a serving after granted a life sentence age, parole to a convict is 11-1/2 hope of on a conceivably years prison 60 in release spend or more minor would Furthermore, significant the differ in is less than the difference time life sentence. true prison parole] “Life in spirit. on human ence effect [without other, imprisonment, all lesser sentences it differs in kind from unique, ... ... parole-eligibility (Rogers date.” with a fixed imprisonment of life including a sentence 1036, 1040.) if particularly true (E.D.Ark. 1979) F.Supp. This is v. Britton minor, virtually live his entire who is condemned to person is inflicted is on whom it confinement, him any opportunity or motive to redeem stripped of ignominious life in judgment youth. the rash and immature attributable to self for an act * Council. Chairperson of the Judicial Assigned provisions the now repealed et are to seq. references § capa- deemed “persons or older are act.) of age years Children therefore, is, clear that Code, 26.) (Pen. It crimes.” committing ble of § as except provided to such persons, apply act intended to I now refer. to which of that act sections succeeding specified “A death case in which the provided penalty may Section 190.1 *18 in chapter phases,” this shall be tried imposed separate be pursuant circumstances), and namely, (including special sanity penalty the guilt “shall conducted in accordance the phase The be phases. penalty 190.1, (c).) and (§ Sections 190.3 190.4.” subd. provisions of that “The for a defendant found penalty guilty Section 190.2 recited death in the state or first murder in the shall be degree of confinement in case in which any without possibility one or parole prison for life of found, . . been and specially more . circumstances has special charged 190.4, (Italics added.) in a under to be true: ...” proceeding Section any Thus, act, where is under the 1977 in case first murder ac- degree circumstances, shall the be requisite penalty the companied by special is death or life without There no what- imprisonment parole. provision ever for sentence in such a case. life-with-parole of Section the limited choice al- repeated punishment foregoing ternatives, “If the defendant has been found of providing guilty that in first and a circumstance been charged murder the has degree special true, found be the trier fact shall determine whether the and . .. of possibility shall be death or without imprisonment pa- penalty life of (Italics added.) factors The section further listed various to be role.” the trier fact its determination. making penalty considered during guilt, Section 190.4 set forth various procedures applicable 190.1. of its pro- and for section One sanity penalty phases provided (a), if finds is Under subdivision noteworthy jury visions here: special but a unanimous verdict on the defendant fails reach guilty If selected issue. retry circumstances a new charge, jury verdict, reach a unanimous “the court shall new likewise fails to jury in state punishment pris- of confinement jury impose dismiss the sole (Italics added.) represented This provision on for life.” life act a sentence of authorization imposing impris- under the 1977 for there in the act is onment parole. any Nowhere possibility be under appropriate any life sentence would suggestion straight special the requisite a failure to find circumstance other than circumstance. from the classes of offenders exempted section 190.5 two
Finally, at the commission of death: age under the persons penalty (subd. in the (a)), cap- who were persons “principals” crime its commission present during were personally ital offense but not death causing aid or commit the acts “intentionally physically” did not (a) “Notwithstanding other (subd. (b)). any stated that Subdivision law, death penalty imposed upon any per- shall not be provision commission of of 18 time of years who is under the age son (a) (Italics any subdivision added.) absent from Notably crime.” 190.2, 190.3) of alternative (§§ mandatory from exemption of parole. imprisonment life *19 act, (1) Thus, of the 1977 aspects briefly summarizing pertinent death, suffer of first murder shall degree found “every person” guilty parole, imprisonment life without of or life imprisonment possibility act itself provisions in the of the parole, provided” with of “as possibility exist, 190); (2) penalty are found (§ special where circumstances without parole imprisonment possibility shall be death or life found, 190.2, not 190.3); (3) circumstances are (§§ special where 190.4); be life with (§ persons parole shall penalty the death exempt 18 when offense was committed are under from me, per 190.5). simply inescapable To the conclusion (§ penalty not exempt from was committed are sons under 18 when the offense indeed, sentence; if of first degree are convicted they life-without-parole automatically subject circumstances, are special they murder with (Reed) Cal. Court Superior (Accord, penalty. 44-49 App.3d case, mur degree was found of first guilty
In the defendant present circumstances, molested, strangled having raped special with der (See 190.2, (c)(3)(iii)-(iv).) ma subd. The girl. death a 13-year-old § to life imprisonment, sentence “reduced orders defendant’s jority (Former statute authorized by applicable alternative sentence only (Ante, added.) seen, Yet we have 190.)” straight italics as p. § cir where only special “authorized” sentence of life imprisonment 190.4). itself did (§ Section 190 by not found to exist cumstances were whatever, to succeeding referred merely but any not “authorize” of such penalty. for the determination sections of the act section 190.1. Far in its reliance upon The likewise errs majority application which “limits” its of the act from a “cornerstone” being 827-828), (ante, imposed pp. be penalty may cases in which the death cases. phases capital Nothing outlined the various the section merely involved, limited, the various penalties or otherwise in section 190.1 first murder. prescribed degree which are for is similarly unproduc- legislative history
The recitation of majority’s intent to minors (see ante, 829-830), exempt an disclosing only tive pp. course, manifest, made That intent was from the death penalty. of section 190.5. adoption require over “the anomalous concern
Finally, majority expresses whenever a verdict hearing guilt ment of a superfluous penalty (Ante, 831.) The p. returned a minor.” special against circumstances is one, false Obvious upon patently premise. is a hollow based argument in section 190.4 is the sole described ly, purpose penalty hearing whether or life without should be parole imposed. to determine death As minors such as defendant are from the former exempt penalty, latter without of further automatically imposed necessity be may (Ibid.) waste of resources.” its hearing, “palpable judicial Thus, the imposi- scheme before us authorized statutory clearly case, present tion of life in the imprisonment parole subject *20 (Cal. Const., the Governor’s or commutation power grant pardon V, 8; Code, art. Pen. 4800 et in an case. seq.) appropriate § § I would aifirm the in its judgment entirety.
Fainer, J.,* concurred. BIRD, J.,C. Concurring Dissenting. I agree my colleague, Mosk, Justice that a minor cannot be sentenced to life legally imprison However, ment without the possibility parole. I cannot with his agree (1978) interpretation requirements 21 People Pettingill 861, Cal.3d 231 578 Cal.Rptr. P.2d v. New Dunaway 108] York U.S. L.Ed.2d 99 S.Ct. as they ap 2248] to this case. that “‘custodial ply Pettingill requires interrogation wholly cease when the indicates in manner that wishes to exer suspect any he cise his Fifth Amendment privilege.’” (Pettingill, supra, p.
* Assigned by Chairperson of the Judicial Council. v. Ireland
quoting indeed, is, (Italics added.) sad to It 580, 40 P.2d A.L.R.3d 1323]. a full-scale retreat opinion Pettingill begin of the fine see the author in that case. enunciated the principles from