Carlos v. Superior Court

RICHARDSON, J.

I respectfully dissent.

The majority, purportedly troubled by “serious constitutional questions” regarding a provision of the 1978 death penalty statute (Pen. Code, § 190.2, subd. (a)(17)), attempts to “avoid” those questions by rewriting the statute. (See ante, p. 147.) Apart from the obvious impropriety in our redrafting of an unambiguous statute regarding the appropriate penalties for criminal offenses, with due deference, I find numerous other errors in the majority’s analysis.

1. Defendant’s Lack of Standing

It seems apparent to me that defendant lacks standing to raise any constitutional challenge which is based on the impropriety of exacting the death penalty for an unintentional felony murder. Defendant does not face the death penalty, and no one contends that he does. As an accomplice who neither personally killed nor intended to kill the victim, he is exempt from the death penalty under Enmund v. Florida (1982) 458 U.S. 782 [73 L.Ed.2d 1140, 102 S.Ct. 3368]. Nevertheless, the majority opinion contains an extended discussion of various theoretical constitutional objections to imposing the death penalty for an unintentional killing. Such discussion, in my view, is unnecessary and inappropriate.

Because defendant herein does not face the death penalty, we have no occasion to discuss the constitutional propriety of that penalty. Moreover, *155by reason of the majority’s misapplication of the holding in People v. Spears (1983) 33 Cal.3d 279 [188 Cal.Rptr. 454, 655 P.2d 1289], discussed in part 2 hereof, this defendant no longer faces even a lesser sentence of life imprisonment without parole. (Ante, pp. 153-154.) It is my view that the Enmund rule, plus Spears, make it entirely inappropriate to discuss, as the majority does at length, whether death or life imprisonment without parole properly may be imposed in the absence of proof of an intent to kill. Enmund forbids imposing death for persons who neither kill nor intend to kill, and Spears precludes imposing life imprisonment without parole in any case where the death penalty is not an available sanction. The remaining discussion is dictum.

2. Misapplication of People v. Spears

The majority in Spears, supra, held that because minors are statutorily exempt from die death penalty (§ 190.5), the Legislature likewise intended to exempt them from the lesser penalty of life imprisonment without parole. The Spears majority believed that the death exemption in section 190.5 disclosed an intent to preclude operation of the entire special circumstances statute with respect to minors. (While I disagreed with the Spears analysis, I concurred in the judgment under the compulsion of our earlier holding in People v. Davis (1981) 29 Cal.3d 814 [176 Cal.Rptr. 521, 633 P.2d 186].)

The present case involves neither a minor nor a statutory exemption from the death penalty. Defendant herein avoids that penalty only because of the Enmund decision. The high court has nowhere suggested, however, that the lesser penalty of life imprisonment without parole was similarly precluded. Nevertheless, the majority now holds that, simply because defendant is constitutionally exempt from the death penalty, he likewise cannot be sentenced even to the lesser penalty. I think this is wrong.

Unlike Spears, where the legislation itself exempted minors from the death penalty, and some uncertainty may have existed regarding legislative intent, in the case before us section 190.2, subdivision (a), expressly and unambiguously requires the imposition of either death or life imprisonment without parole, and no other penalty, for a first degree murder committed during a robbery. The intent to impose either one of these two penalties (and no lesser penalty) is absolutely clear. A subsequent judicial ruling which has precluded imposition of the greater penalty does not affect the propriety of exacting the lesser.

Moreover, the 1978 death penalty law contains a detailed and comprehensive severability clause which would preserve the lesser penalty even if imposing the death penalty is unconstitutional as applied to an unintentional *156felony murder. (See People v. Superior Court (Colbert) (1978) 78 Cal.App.3d 1023, 1028 and fn. 3 [144 Cal.Rptr. 599].) The severability provisions (§§ 13, 14 of Initiative Measure approved on Nov. 7, 1978, 47 West’s Ann. Pen. Code (1983 Cum. Supp.) foil. § 190, p. 178; Deering’s Ann. Pen. Code (1982 Supp.) p. 133), could be readily applied to delete all references to the death penalty as an alternative to life imprisonment without parole in cases to which Enmund applies. For example, section 14 of the initiative measure recites that if any application of the initiative to any person is held invalid as to a defendant sentenced to death, that defendant “will instead be sentenced to life imprisonment . . . without the possibility of parole.” If such a severance can occur following trial and sentence, a fortiori, it can occur prior to trial. The people’s intent to preserve and apply the lesser penalty despite the invalidity of the greater one appears manifest.

3. Misinterpretation of Section 190.2

The majority, in rewriting section 190.2, subdivision (a)(17), to “avoid” constitutional problems, concludes that application of the “felony murder special circumstances” is limited to those persons “who intend to kill or aid in a killing.” (Ante, p. 145.) Again, with respect, this interpretation is patently incorrect, adding, as it does, an element of intent which the sovereign people specifically deleted from prior law by adopting the 1978 initiative measure.

The now repealed 1977 death penalty statute expressly required proof that the defendant, “with intent to cause death,” committed a “willful, deliberate, and premeditated” murder during the commission or attempted commission of various enumerated felonies. (Former § 190.2, subd. (c)(3).) The 1978 law, however, contains no such qualification, requiring only that the defendant be found guilty of a first degree murder “committed while the defendant was engaged in or was an accomplice in the commission of, attempted commission of, or the immediate flight after committing or attempting to commit” nine enumerated dangerous felonies (§ 190.2, subd. (a) (17)). It is elementary that when existing law is amended by deleting an express provision of the previous statute, we must presume that a change in the law was intended. (E.g., People v. Schmel (1975) 54 Cal.App.3d 46, 51 [126 Cal.Rptr. 317].) Conclusive evidence of such an intent is contained in the language setting forth the remaining special circumstances under section 190.2, subdivision (a): Ten of these provisions expressly require that the killing be an “intentional” one, a word conspicuously absent from the felony murder special circumstance. Thus, it seems inescapable to me that neither the drafters of the 1978 initiative measure nor the voters who adopted it intended that subdivision (a)(17) of section 190.2 would be limited to persons who intend to kill or aid in a killing.

*157The majority, however, rejects an interpretation of the statute which would permit imposition of the death penalty for “accidental” killings, stressing that such a law “would be a momentous step, raising grave moral questions.” (Ante, p. 145.)

There are at least four difficulties with such a generalized observation:

First, as previously noted, the death penalty is not sought in this case.

Second, the record discloses that the victim was probably shot during a gunfight between defendant’s accomplice and a deputy sheriff. At this pretrial stage of the case, we cannot simply assume that the killing was either “accidental” or unintentional.

Third, we have no power whatever to rewrite unambiguous penal statutes which fail to comport with our own personal views of “morality.” These judgments are to be made by the people, not this court.

Fourth, there is nothing “momentous” about a statute which permits imposition of the death penalty for accidental killings occurring in the course of the commission of a dangerous felony. Prior to 1973, when the Legislature first added the now deleted requirement of a “willful, deliberate, and premeditated” felony murder, the California statutes authorized routine imposition of the death penalty for any first degree murder (former § 190, enacted 1872), which included an accidental felony murder under section 189.

The majority points to certain supposed anomalies which conceivably might arise if we interpreted and applied section 190.2, subdivision (a)(17), as it is presently written. As I explain in a subsequent portion of this opinion, we cannot and should not demand absolute perfection or equality of treatment in an area as inherently dependent upon subjective value judgments as criminal punishment. But even assuming that injustices conceivably might occur, that fact does not afford a sound basis for rewriting an unambiguous statute. As previously explained, unlike many of the other statutory special circumstances, and unlike the 1977 predecessor law, the present provision does not require proof of an “intentional” or “willful” or “premeditated” or “deliberate” murder. Thus, no purpose is served by the majority’s protracted attempts at finding possible anomalies in the law we are sworn to uphold and apply as written.

The majority relies on the ballot arguments regarding the initiative measure (Prop. 7, Gen. Elec. (Nov. 7, 1978)) which contained the provision at issue herein. Those arguments seem wholly inconclusive. As the majority *158acknowledges, the opponents of the measure construed it as permitting imposition of the death penalty for an unintended killing. (Ante, p. 144.) Contrary to the majority, however, the proponents’ rebuttal argument did not dispute this interpretation as applied to the actual killer, but only as applied to the accomplice (the “poor lender” of a screwdriver used by someone else in a murder). Nowhere do the proponents suggest that the murderer himself must have intended to kill his victim in order to justify imposition of the death penalty or life imprisonment without parole.

It is unnecessary to discuss the majority’s interpretation of the accomplice provisions of the 1978 law (§ 190.2, subd. (b)), because the Enmund case, supra, 458 U.S. 782 [73 L.Ed.2d 1140, 102 S.Ct. 3368] mandates the existence of an intent to kill or assist in a killing before the death penalty constitutionally may be imposed upon an accomplice. And under both the majority’s misapplication of People v. Spears, supra, 33 Cal.3d 279, and its editing of section 190.2, subdivision (a)(17), the lesser penalty of life imprisonment without parole likewise becomes unavailable notwithstanding proof of special circumstances.

4. Constitutionality Under the Federal Constitution

Does there exist any constitutional impediment to imposing either death or life imprisonment without parole upon one who kills during a dangerous felony, in the absence of proof of an intent to kill?

With due respect, I find wholly unconvincing the majority’s analysis of the “serious constitutional questions” which would arise were we to construe section 190.2 as it is written. In Enmund, supra, the high court strongly suggested that either an intent to kill or personal involvement in the killing would be sufficient to justify imposing the death penalty in a felony murder case. Thus, Enmund held that the Eighth Amendment does not permit imposing that penalty “on one such as Enmund who aids and abets a felony in the course of which a murder is committed by others but who does not himself kill, attempt to kill, or intend that a killing take place or that lethal force will be employed. ” (Italics added, 458 U.S. at p. 797 [73 L.Ed.2d at p. 1151, 102 S.Ct. at pp. 3376-3377].) As the court explained, “Enmund did not kill or intend to kill and thus his culpability is plainly different from that of the robbers who killed; yet the state treated them alike . . . . ” (Italics added, id., at p. 798 [73 L.Ed.2d at p. 1152, 102 S.Ct., p. 3377].) Thus, the states may continue to punish with death (and certainly with life imprisonment without parole) those persons who, in the course of committing a dangerous felony, actually kill someone, whether or not they actually intended the killing to occur.

*159Can there be any doubt that imposition of such punishment under such circumstances has a rational penological basis? The purpose underlying the felony murder special circumstances provision is perfectly obvious. It was and is to deter felons from using deadly weapons or deadly force, or taking other action likely to result in death, by severely punishing the commission of those dangerous felonies which actually result in a killing. The fact that some intentional murders may be punished less severely certainly does not invalidate the challenged statute: “[A]symmetry in the scale of penalties arouses constitutional alertness but breaches the cruel and unusual punishment clause only if it lacks a rational basis.” (In re Maston (1973) 33 Cal.App.3d 559, 565 [109 Cal.Rptr. 164] [life imprisonment without parole for aggravated kidnaping is constitutional form of punishment despite lesser penalty for premeditated murder]; see People v. Crane (1983) 142 Cal.App.3d 92, 101-103 [190 Cal.Rptr. 785]; People v. Noble (1981) 126 Cal.App.3d 1011, 1018-1021 [179 Cal.Rptr. 302].) In an age when the state and nation are awash with murders and violent felonies, it is within the power of the Legislature or the people themselves by initiative to judge which felonies are deemed more serious, and to include only those offenses within the felony murder special circumstances statute. The present classification and identification of these felonies are abundantly reasonable.

In sum, given Enmund’s strong implication that one who personally kills while committing a dangerous felony constitutionally may be subject to the death penalty, any “serious constitutional questions” are illusory with respect to the provision at issue here.

5. Conclusion

The majority by interpretation has recast the 1978 death penalty law in a manner which effectively nullifies the felony murder special circumstances provision, thereby requiring reversal and retrial of numerous cases presently pending on appeal before this court and the Court of Appeal. In doing so, the majority has ignored sound principles of statutory interpretation and constitutional law, and has thwarted the people’s will in their adoption of the 1978 law.

Several years ago, in an opinion which invalidated as unconstitutional the 1973 mandatory death penalty statutes, we declined the People’s invitation to rewrite those statutes in a manner which might pass constitutional muster. (Rockwell v. Superior Court (1976) 18 Cal.3d 420, 444-445 [134 Cal.Rptr. 650, 556 P.2d 1101].) We stated in Rockwell that “They [the People] ask us not to interpret, but to rewrite the law in a manner which we have shown to be contrary to the manifest legislative intent in enacting [former] sections *160190 through 190.3. Decisions as to which criminal defendants shall suffer the death penalty ... are matters of legislative concern.” (P. 445.)

In my view, the majority has either forgotten or ignored Rockwell’s lesson. We should not attempt to rewrite the felony murder special circumstances statute in a manner wholly alien to the manifest intent of those who drafted it, and the people who adopted it. It is as unwise as it is unnecessary.

I would deny the writ.

The petition of real party in interest for a rehearing was denied January 19, 1984.