THE PEOPLE, Plaintiff and Respondent, v. DAVID D. WEIDERT, Defendant and Appellant.
Crim. No. 23649
Supreme Court of California
Sept. 19, 1985
39 Cal. 3d 836
Quin Denvir and Frank O. Bell, Jr., State Public Defenders, under appointment by the Court of Appeal, Eric J. Coffill and Steven W. Parnes, Deputy State Public Defenders, for Defendant and Appellant.
John K. Van de Kamp, Attorney General, Daniel J. Kremer, Chief Assistant Attorney General, Arnold O. Overoye, Assistant Attorney General, Robert D. Marshall and Linda A. Cabatic, Deputy Attorneys General, for Plaintiff and Respondent.
Christopher N. Heard as Amicus Curiae on behalf of Plaintiff and Respondent.
OPINION
BIRD, C. J.—The principal issue presented by this case is whether an individual who intentionally kills a witness for the purpose of preventing his or her testimony in a juvenile proceeding is subject to the death penalty or life imprisonment without the possibility of parole under the 1978 Briggs Initiative.
I.
On June 18, 1980, the office of Dr. David Joseph Edwards was burglarized. Dr. Edwards undertook his own investigation and focused upon the employees of the janitorial service he had engaged around the time of the burglary. The investigation prompted Michael Morganti to confess his involvement in the burglary. According to Morganti, he had acted as a lookout for appellant, then 17 1/2 years old, who had been employed by the same janitorial service. Morganti subsequently pleaded guilty to petty theft based upon his involvement in the burglary.
Dr. Edwards’ investigation led to several discussions about the burglary with appellant. On three separate occasions, Edwards informed appellant of his suspicions about appellant‘s involvement. On the last such occasion, Edwards told appellant that he knew that Morganti was an eyewitness to the
In October of 1980, shortly after his 18th birthday, appellant told 17-year-old John A. that he had hired someone to kill Morganti but had not paid him. John responded that he knew someone who would commit the murder for appellant. Appellant also told another juvenile, Rodney G., of his intention to “get somebody” connected with the burglary.
About noon on November 21, 1980, John A. finished classes at his school in Fresno and headed for work. He had recently obtained a job through appellant in construction and in performing janitorial services. When his employer failed to meet him as agreed, John telephoned appellant, who told him that he had something very important to do that day and that it “would be worth more” to him if he waited to be picked up rather than going to work. John agreed to wait, and appellant soon arrived as arranged.
As they drove off in appellant‘s truck, appellant told John that he wanted to kill Morganti so that Morganti could not testify against him in connection with the burglary of Edwards’ office. The pair drove to Morganti‘s neighborhood where they waited for several hours for Morganti. During the wait, appellant described to him the circumstances of the Edwards burglary and the extent of his and Morganti‘s participation.
Soon after this conversation, Morganti arrived on the scene and entered his apartment. Acting upon a ruse suggested by his girlfriend, John went to the apartment, introduced himself, told Morganti that his sister wanted to meet him, and convinced him to leave the apartment. They went to a parking lot where appellant was waiting. John and appellant then forced Morganti into the truck, drove about a mile, and then stopped to tie Morganti‘s hands behind his back. The trio then drove to an isolated location in the mountains where appellant, aided by John, beat Morganti and left him for dead in a shallow grave. Morganti died of suffocation.
Appellant was charged with kidnaping (
A jury found appellant guilty of the charged offenses and found both special circumstance allegations true. Prior to sentencing, appellant unsuccessfully moved to strike the special circumstance findings. Thereafter, the court sentenced him to life imprisonment without the possibility of parole.2
II.
The first issue this court must address is whether the kidnaping-murder special circumstance finding must be reversed.
This court recently held that where an accused‘s primary goal was not to kidnap but to kill, and where a kidnaping was merely incidental to a murder but not committed to advance an independent felonious purpose, a kidnaping-felony-murder special circumstance finding cannot be sustained. (People v. Green (1980) 27 Cal.3d 1, 47-62; see People v. Thompson (1980) 27 Cal.3d 303, 321-322.)
The Attorney General concedes that the evidence was insufficient to establish that appellant committed the kidnaping to advance any felonious purpose independent of the killing. Appellant‘s avowed purpose was to kill Morganti in order to prevent him from testifying, not to kidnap him. Therefore, this special circumstance finding must be set aside and further proceedings on this allegation are barred by the double jeopardy clause. (People v. Green, supra, 27 Cal.3d at p. 62 and cases cited.)
III.
The next issue is whether the jury‘s finding on the killing-of-a-witness special circumstance finding can be sustained. The resolution of this issue hinges in part on whether the voters, in enacting the 1978 Briggs Initiative, intended to subject an accused to the death penalty or a life-without-parole
From a policy point of view, perhaps the killing of any witness—whether that witness’ testimony was to be elicited in a proceeding denominated criminal, juvenile, traffic, “quasi-criminal,” probate, civil, legislative, or administrative—should be a capital offense. However, our role is limited by the language of
The language of
“‘It is a settled principle in California law that “[w]hen statutory language is thus clear and unambiguous there is no need for construction, and courts should not indulge in it.” (Solberg v. Superior Court (1977) 19 Cal.3d 182, 198.)’ (In re Waters of Long Valley Creek Stream System (1979) 25 Cal.3d 339, 348.) This principle is but a recognition that courts ‘“must follow the language used and give to it its plain meaning, whatever may be thought of the wisdom, expediency, or policy of the act, even if it appears probable that a different object was in the mind of the legislature.“’ (Woodmansee v. Lowery (1959) 167 Cal.App.2d 645, 652.) Since the language of
Even if one looks beyond the plain words of the statute, there is no evidence that
The witness special circumstance provision was first enacted in the 1973 death penalty law. That provision required that “the murder [have been]
The 1978 Briggs Initiative expanded the circumstances under which an accused would be eligible for a sentence of death or life without the possibility of parole. (See Carlos v. Superior Court (1983) 35 Cal.3d 131, 139-140.) The initiative added several special circumstances to
However, in marked contrast to this expansionist trend, the witness special circumstance continued to focus narrowly on criminal proceedings. Although the 1978 measure deleted the “willful, deliberate, and premeditated” requirement of the 1977 provision and extended it to killings “in retaliation for [the victim‘s] testimony in any criminal proceeding,” the “criminal proceeding” qualifying language was left untouched. There is no evidence that the people intended to adopt any broader a statute.
The enacting body is deemed to be aware of existing laws and judicial constructions in effect at the time legislation is enacted. (Bailey v. Superior Court (1977) 19 Cal.3d 970, 977-978, fn. 10.) This principle applies to legislation enacted by initiative. (In re Lance W. (1985) 37 Cal.3d 873, 890, fn. 11.)
For over 20 years, California law has provided that “[a]n order adjudging a minor to be a ward of the juvenile court shall not be deemed a conviction of a crime for any purpose, nor shall a proceeding in the juvenile court be deemed a criminal proceeding.” (
The 1976 reenactment of
Over the past 15 years, several judicial decisions have acknowledged and expressly relied on the clear statement of legislative policy embodied in
Where the language of a statute uses terms that have been judicially construed, “‘the presumption is almost irresistible‘” that the terms have
The electors are also deemed to have been aware of provisions similar to
Recent actions in the Legislature concerning
The provisions of Proposition 8 confirm the conclusion that the voters did not intend to include juvenile proceedings within
Even if we were to assume that the precise meaning of the “criminal proceeding” language of
This policy applies to enactments by initiative. (Carlos v. Superior Court, supra, 35 Cal.3d at p. 154.) It carries particular force here because
Strict construction of penal statutes has also been recognized as “a useful means to protect the individual against arbitrary discretion by officials and judges.” (3 Sutherland, op. cit. supra, at p. 8.) The policy stated in Keeler and its progeny guards against the usurpation of the legislative function by the judiciary in the enforcement of a penalty where the legislative branch did not clearly prescribe one. (3 Sutherland, op. cit. supra, at p. 8.) This rule embodies a recognition that “since the state makes the laws, they should be most strongly construed against it.” (Ibid., fn. omitted.)
McBoyle v. United States (1931) 283 U.S. 25 illustrates the notice problem which would obtain by applying
The reasoning of Justice Holmes’ concluding paragraph is fully applicable: “Although it is not likely that a criminal will carefully consider the text of the law before he murders or steals, it is reasonable that a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed. To make the warning fair, so far as possible the line should be clear. When a rule of conduct is laid down in words that evoke in the common mind only the picture of vehicles moving on land, the statute should not be extended to aircraft, simply because it may seem to us that a similar policy applies, or upon the speculation that, if the legislature had thought of it, very likely broader words would have been used.” (McBoyle, supra, 283 U.S. at p. 27, citation omitted.)
As in McBoyle, even though an individual who kills a witness to prevent his testimony in a juvenile court proceeding may not reflect upon the scope of
Indeed, due process principles would be violated if this court held that
As Justice Mosk noted in Keeler, the application of the fair warning principle to judicial enlargement of penal statutes finds its roots in Bouie v. City of Columbia, supra, 378 U.S. 347. Bouie explained that “an unforeseeable judicial enlargement of a criminal statute, applied retrospectively, operates precisely like an ex post facto law. . . . An ex post facto law has been defined by this Court as one ‘. . . that aggravates a crime, or makes it greater than it was, when committed.’ [Citation.] If a state legislature is barred by the Ex Post Facto Clause from passing such a law, it must follow that a State Supreme Court is barred by the Due Process Clause from achieving precisely the same result by judicial construction.” (Id., at pp. 353-354, citations omitted, italics in orig.)
The facts of Keeler illustrate these principles well. There, the accused had assaulted his former wife, who was pregnant by another man. The assault caused serious injury to her and resulted in the death of the unborn but viable fetus. At the time of the incident, the murder statute (
This court held that he could not. That conclusion was based on the origins and development of the common law of abortional homicide, the legislative history of the murder statute, and on the presumption that Keeler was entitled to the benefit of every reasonable doubt as to the meaning of the term “human being.” (Keeler, supra, 2 Cal.3d at pp. 624-631.)
Keeler went on to address the due process-notice problem. On the date of the killing, there was “no reported decision of the California courts which should have given petitioner notice that the killing of an unborn but viable fetus was prohibited by
Keeler readily acknowledged that petitioner‘s conduct “strongly implie[d]” violation of another criminal statute. “[T]here was another statute on the books which [he] could well have believed he was violating: [former]
This reasoning applies here. If this court were to judicially construe
This judicial enlargement of
Finally, the Attorney General has urged that interpreting
The intentional killing of a witness, whatever the context of his intended testimony, is hardly an act permitted by our law. To apply subdivision
IV.
At trial, appellant contended that the witness special circumstance finding should be stricken on the ground that there was no evidence that Morganti was intentionally killed for the purpose of preventing his testimony in a criminal proceeding, since the evidence at most established only that a juvenile proceeding had been contemplated.
Appellant‘s characterization of the evidence is a correct one. At the time of the burglary, appellant was 17 1/2 years old. In view of his age and the offense involved, the only manner in which the case could have been prosecuted in a criminal court would have been for the prosecution to establish appellant‘s unfitness to be tried as a juvenile.
However, it is far from probable that appellant‘s fitness to be tried under the Juvenile Court Law would even have been questioned. There is no indication that the prosecutor in that case ever considered seeking a finding of unfitness. When called as a witness in the present cases, he testified only that at the time of the killing, he had been contemplating filing a juvenile court petition. However, in accordance with the “early dispo” policy then in effect in Fresno County, he first offered appellant the opportunity to admit the offense on condition that it be declared a misdemeanor13 and restitution
In addition, there is little evidence that appellant would have been found unfit for the juvenile court even if that question had been litigated. Such a showing would have required substantial evidence that appellant was not a fit and proper subject to be dealt with under the Juvenile Court Law. (People v. Carl B. (1979) 24 Cal.3d 212, 218.) In making this determination, the juvenile court would have examined (1) the degree of criminal sophistication exhibited by appellant, (2) whether appellant could be rehabilitated prior to the expiration of the juvenile court‘s jurisdiction, (3) appellant‘s previous delinquent history, (4) the success of previous attempts by the juvenile court to rehabilitate him, and (5) the circumstances and gravity of the alleged offense. (
According to the probation report, appellant had no record as a juvenile at the Fresno County Probation Department. FBI and CII records revealed no previous arrests or convictions as an adult. Although burglary is a serious crime, the manner in which it was allegedly committed here—by entering through a window which had been broken by throwing a rock—did not exhibit a high degree of sophistication. And, although the amount of money taken from Edwards’ office was substantial ($700), there was no other damage, and no injuries were suffered.
Thus, appellant‘s argument regarding the absence of substantial evidence indicating a pending or future criminal proceeding at the time of the killing was a sound one. Nevertheless, this argument overlooks the fact that a jury could have found the special circumstance allegation true if it found that appellant believed that his participation in the burglary subjected him to a criminal rather than a juvenile proceeding, and that he killed Morganti for the purpose of preventing him from testifying in such a proceeding.
The words of
A hypothetical or two may make it clear that it is an accused‘s subjective intent that is crucial under
In this case, the jury was not instructed that in order to find the
This does not mean that reprosecution on that allegation is barred. From the present record, it is not at all clear that the prosecution will be able to present sufficient evidence to create a jury issue with respect to the particularized intent required by
Appellant also contends that (1) his motion for mistrial should have been granted, based on a prosecution witness’ reference to a polygraph examination of appellant, and (2) the prosecutor improperly commented upon appellant‘s failure to testify. These contentions were correctly resolved by the Court of Appeal when the case was before that court, and for the reasons stated by the Court of Appeal, this court holds each of them to be without merit. (See People v. Javier A. (1985) 38 Cal.3d 811, 815; People v. Bledsoe (1984) 36 Cal.3d 236, 252, fn. 16.)
VI.
Justice Traynor observed over a quarter-century ago that this court is “‘not equipped to decide desirability; and a court cannot eliminate measures which do not happen to suit its tastes if it seeks to maintain a democratic system. The forum for the correction of ill-considered legislation is a responsive legislature.‘” (Werner v. Southern Cal. etc. Newspapers (1950) 35 Cal.2d 121, 130, quoting Daniel v. Family Ins. Co. (1949) 336 U.S. 220, 224.) Those words are as true today as they were then.
There is no indication that the voters intended to make
The absence of substantial evidence that the killing was incidental to the kidnaping requires that the kidnaping-felony-murder special circumstance finding be set aside. Reprosecution of it is barred under double jeopardy principles. (People v. Green, supra, 27 Cal.3d at p. 62.) Since the trial court‘s instruction on the witness special circumstance did not comport with the construction of
Kaus, J., Broussard, J., and Reynoso, J., concurred.
Grodin, J., concurred in the result.
LUCAS, J. Concurring and Dissenting. —I concur with the majority opinion to the extent it would strike the special circumstances finding under
FACTS
In June 1980, Doctor David Edwards discovered that his office had been burglarized. Edwards suspected defendant, a 17 1/2-year-old minor employed by Edwards’ janitorial service. Edwards confronted and accused defendant on several occasions, finally informing him that defendant‘s coemployee Morganti was an eyewitness to the burglary. Defendant responded by saying “Nobody is going to believe that idiot in Court. . . . I‘ll see to it that they don‘t.”
In November 1980, defendant approached another minor, John A., and told him that defendant wanted Morganti killed to prevent his testimony. Soon thereafter, John lured Morganti from his apartment and escorted him to a nearby parking lot where defendant joined them. Defendant pulled a
The assailants buried their victim in the shallow grave but, as defendant was walking across it, Morganti‘s hand emerged and grabbed defendant‘s leg. After Morganti‘s head emerged from the dirt, defendant wrapped a piece of wire around Morganti‘s neck and attempted to strangle him into submission. Finally, after Morganti‘s struggles ceased, defendant hit him in the groin area with the baseball bat and, observing no response, reburied him and left the area. The evidence indicated that Morganti died of suffocation. No formal proceedings with respect to the Edwards burglary had been initiated at the time of Morganti‘s death.
DISCUSSION
1. Potential for Adult Proceedings
First, as defendant was approximately 17 1/2 years old at the time of the burglary, he was potentially subject to adult criminal proceedings in the event he was found unfit to be dealt with under the Juvenile Court Law. (See
It is true, of course, that we cannot know with certainty whether defendant‘s burglary case would have been tried in adult or juvenile court; key witness Morganti‘s death mooted the issue prior to the initiation of any proceedings. Yet defendant is hardly in a position to complain. Just as one accused of killing his parents cannot be heard to plead for mercy on the ground that he is an orphan, defendant‘s intentional murder of Morganti should estop him from complaining about any resultant uncertainty regarding the status of the burglary case.
2. Juvenile Delinquency Proceedings Are “Criminal Proceedings”
In any event, I think the majority‘s distinction between adult and juvenile proceedings in the present context is too artificial, producing anomalous results far beyond the probable contemplation of the framers of
In construing initiative measures, we have indicated that they “must receive a liberal, practical commonsense construction which will meet changed conditions and the growing needs of the people. [Citations.] . . . The literal language of enactments may be disregarded to avoid absurd results and to fulfill the apparent intent of the framers. [Citations.]” (Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 245, italics added.) In addition, as we have recently observed, when faced with serious constitutional questions involving the rationality of a death penalty statute, we should “endeavor to construe the statute in a manner which avoids any doubt concerning its validity. [Citations]” (Carlos v. Superior Court (1983) 35 Cal.3d 131, 147, fn. omitted, italics in original.)
In my view, the only “practical commonsense construction” of the 1978 initiative provision at issue here, and the only interpretation which avoids an irrational, and possibly unconstitutional classification, is that the provision applies to all defendants who intentionally kill their victims to prevent
For all the foregoing reasons, it is highly unlikely that the electors who adopted the 1978 death penalty initiative assumed that the phrase “criminal proceeding” would exclude a juvenile court delinquency proceeding based on acts constituting a crime if committed by an adult. Indeed, a more recent initiative measure which also involved criminal procedure and punishment employed the phrase “criminal proceeding” in its broader sense. The measure added
The majority relies heavily upon
The majority also relies upon the general rule that when a penal statute is reasonably susceptible of two interpretations, we ordinarily will adopt the one favorable to the defendant. (E.g., People v. Davis (1981) 29 Cal.3d 814, 828, and cases cited.) We have indicated that this general rule is founded upon the due process principle that a defendant is entitled to “fair warning” that his act is punishable as a crime. (Keeler v. Superior Court (1970) 2 Cal.3d 619, 631.)
For two reasons, I reject application of this principle here. First, we have never indicated that the foregoing general rule must always override other interpretive principles such as the necessity to avoid absurd or anomalous results, or the obligation to construe statutes in such a manner as to uphold their constitutionality. Indeed, in Davis, supra, 29 Cal.3d 814, we cited and applied all of the foregoing interpretive principles in reaching our decision. As I have previously indicated, the adoption of defendant‘s proposed construction of
Second, defendant was not constitutionally entitled to know with absolute certainty that his brutal murder would invoke a “special circumstances” provision. Due process may require fair notice that one‘s conduct is punishable as a crime (Keeler, supra, 2 Cal.3d at p. 631), and defendant certainly must have realized that his actions were subject to severe punishment. Any imprecision in defining the exact nature or degree of that punishment should not be deemed constitutionally significant.
Mosk, J., concurred.