People v. Teron

CLARK, J., Dissenting.

The majority make the following argument for refusing to uphold the trial court’s judgment imposing the death penalty upon defendant.

While the Legislature is presumed to intend an amendatory statute mitigating or reducing punishment be applied retroactively, the Legislature is presumed to intend an amendatory statute increasing punishment be applied only prospectively. (See, e.g., In re Estrada (1965) 63 Cal.2d 740 [48 Cal.Rptr. 172, 408 P.2d 908].) The majority contend the 1977 statute increased the punishment for defendant’s crime. Therefore, they reason, the Legislature must be presumed to have intended the statute be limited to future application.

The flaw in the majority’s argument is that the 1977 statute does not increase the punishment, but rather mitigates the penalty for defendant’s crime. Defendant’s crime is first degree murder by one having personally committed the acts causing death and having “been convicted in a prior proceeding of the offense of murder of the first or second degree.” (Pen. Code, § 190.2.) In 1975, when defendant committed the crime, it was punishable by a mandatory penalty of death. (Former § 190.2, added by Stats. 1973, ch. 719, § 5, and repealed by Stats. 1977, ch. 316, § 8.) The 1977 statute mitigated the punishment for defendant’s crime by providing for life imprisonment without possibility of parole as an alternative to the previously mandatory death penalty. (§ 190.2, added by Stats. 1977, ch. 316, § 9.) Therefore, we must presume the Legislature intended thé 1977 statute to apply retroactively.

“Consistent with Estrada’s mandate, we must address ‘all pertinent factors’ when attempting to divine the legislative purpose. A wide variety of factors may illuminate the legislative design, ‘such as context, the object in view, the evils to be remedied, the history of the times and of legislation upon the same subject, public policy, and contemporaneous construction.’ ” (In re Marriage of Bouquet (1976) 16 Cal.3d 583, 587-588 [128 Cal.Rptr. 427, 546 P.2d 1371], quoting Alford v. Pierno (1972) 27 Cal.App.3d 682, 688 [104 Cal.Rptr. 110].)

In criminal cases generally, but in death penalty cases especially, we have tended to lose sight of the “evils to be remedied” by the challenged legislation. In order to faithfully implement the intent of the Legislature *122in this case, we must remind ourselves of the evil to be remedied by a death penalty statute. There is no better way of doing so than by review of the facts of this case.

Facts

In 1975, in Anaheim, defendant brutally murdered Earl Reed for $1.75. Reed choked on his own blood after defendant first beat and then smothered him. When defendant went to Reed’s room that night he intended, by his own admission, to rob Reed and then murder him “just so I could get away with” the robbery. Defendant had, he admitted, no other motive for killing Reed.

In 1977, prior to defendant’s trial for the Reed murder, defendant was convicted of two other murders in Michigan. One of his Michigan victims was Norma Maxham, a 75-year-old woman from whom he rented a room. When Mrs. Maxham asked defendant to move out of the room he beat her until she was unconscious, tore off her clothes, bound her with electrical cord and hanged her by the neck. After waiting until he was certain of his victim’s death, defendant left the house to buy pizza and beer. He returned to the room and, in the presence of the still hanging corpse, ate the pizza, drank the beer, took a shower and watched a football game on television.

While in jail in Michigan awaiting trial for the Maxham murder, defendant hanged a fellow inmate.

Defendant admits having committed at least two other murders, but states he has no idea of the total number of persons he has killed. He explains his incomplete recall by comparing the act of murder to drinking a cup of coffee. A month from now, defendant notes, one is not likely to remember having drunk a cup of coffee today.

Defendant claims he can easily make a knife while in jail, and will knife a guard if given the opportunity. Nothing the prison officials can do will deter him, defendant insists. If released from jail, defendant intends to return to his “everyday type of life.”

This is the person the majority free from the gas chamber—modifying his sentence to life imprisonment with possibility of parole—by imputing to the Legislature the intention not to have the 1977 death penalty statute apply retroactively.

*123A review of the recent history of death penalty legislation in California reveals the utter absurdity of the majority’s conclusion.

Legislative History

On 18 February 1972, a majority of this court held the death penalty violative of the cruel or unusual punishment prohibition of article I, section 6 (now § 17) of the California Constitution on the grounds it offended contemporary standards of decency and was no longer commonly practiced by civilized societies. (People v. Anderson (1972) 6 Cal.3d 628 [100 Cal.Rptr. 152, 493 P.2d 880].)

Nine months later, in the general election of 7 November 1972, the people of California repudiated this court’s assessment of contemporary standards. Proposition 17—an initiative measure nullifying Anderson by amending the California Constitution to expressly provide that the death penalty does not constitute cruel or unusual punishment as that term is used in our charter—was approved by 67 percent of the voters.1

This direct expression of the people’s will was thwarted, however, by the intervening decision of the United States Supreme Court striking down the death penalty statutes of Georgia and Texas on the ground they violated the federal Constitution’s prohibition against cruel and unusual punishment. (Furman v. Georgia (1972) 408 U.S. 238 [33 L.Ed.2d 346, 92 S.Ct. 2726].)

“Those states wishing to reenact capital punishment studied Furman, of course, to determine what, specifically, had rendered the Georgia and Texas statutes unconstitutional. Because each of the nine justices wrote a separate opinion in that case, and none spoke for the court, certainty was not possible. However, the consensus in the legal community was that the high court disapproved of death penalty statutes conferring discretion upon the sentencing authority, and that the court would uphold legislation which eliminated the element of discretion by making the death penalty mandatory for certain offenses. Subscribing to this interpretation of Furman, California enacted a ‘mandatory’ capital punishment system.” (Rockwell v. Superior Court (1976) 18 Cal.3d 420, 446 [134 Cal.Rptr. 650, 556 P.2d 1101] (Clark, J.,.conc.).)

*124California’s good faith effort to provide for capital punishment without infringing on constitutional prohibitions was frustrated, however, by the high court’s failure to make itself understood in Furman. In Gregg v. Georgia (1976) 428 U.S. 153 [49 L.Ed.2d 859, 96 S.Ct. 2909] and its companion cases, more than four years after its Furman decision, the Supreme Court made it clear that “statutes providing for imposition of the death penalty may neither make that penalty mandatory nor give the jury or judge charged with determining the penalty absolute discretion in the choice of life or death, but must provide standards so that the sentencing authority will ‘focus on the particularized circumstances of the crime and the defendant.’ ” (Rockwell v. Superior Court, supra, 18 Cal.3d at p. 428, quoting Gregg v. Georgia, supra, 428 U.S. at p. 199 [49 L.Ed.2d at p. 889].)

The death penalty statute California enacted in 1973 in reliance on the prevailing but mistaken interpretation of Furman did not, of course, satisfy the test later enunciated in Gregg. “We conclude therefore that because sections 190 through 190.3 make death a mandatory punishment for those categories of first degree murder encompassed by the special circumstances enumerated in section 190.2, without provision for consideration of evidence of mitigating circumstances as to the offense or in the personal characteristics of the defendant, and afford no specific detailed guidelines as to the relevance of such evidence in determining whether death is an appropriate punishment, they permit arbitrary imposition of the death penalty in violation of the Eighth and Fourteenth Amendments to the United States Constitution.” (Rockwell v. Superior Court, supra, 18 Cal.3d at p. 445.)

The holding of Rockwell is crystal clear: “Those provisions which establish procedures for imposition of the death penalty are therefore invalid and petitioner may not be required to stand trial thereunder.” (18 Cal.3d at p. 445, italics added.)

In response to Rockwell, the Legislature passed and sent to the Governor Senate Bill No. 155 (Stats. 1977, ch. 3.16) remedying the procedural defects in the prior legislation. The bill was vetoed by the Governor on 27 May 1977, but the veto was overridden and the statute was filed and became effective on 11 August 1977.

A postscript to this history of California’s long struggle to protect its citizens with an operative death penalty was provided by the General Election of 7 November 1978. Proposition 7, an initiative measure extending the death penalty to other categories of first degree murder, *125was approved by 72 percent of the voters, an even more overwhelming majority than nullified Anderson by approving Proposition 17.

Legislative Intent

By enacting the 1973 statute the Legislature manifested its determination that a mandatory death penalty is the appropriate punishment for defendant’s crime. Because mandatory death penally statutes were declared unconstitutional in the interim, the Legislature in 1977 made defendant’s crime punishable by either death or life imprisonment without possibility of parole, depending upon consideration of aggravating and mitigating circumstances. The Legislature’s intentions in enacting the 1977 statute were clearly stated in the urgency clause. “The California Supreme Court has declared the existing death penalty law unconstitutional. This act remedies the constitutional infirmities found to be in existing law, and must take effect immediately in order to guarantee the public the protection inherent in an operative death penalty law.” (Stats. 1977, ch. 316, § 26.)

To draw from the historical record the conclusion that the Legislature in enacting the 1977 statute intended to repeal the death penalty as to crimes committed prior to the effective date of the amendatoiy legislation is, again, utterly absurd.

The applicable principles of statutory construction certainly do not suggest such a conclusion. As the majority note, section 3 of the Penal Code states that no provision of the code “is retroactive, unless expressly so declared.” However, as this court made clear in In re Estrada, supra, 63 Cal.2d 740, 746: “That section simply embodies the general rule of construction, coming to us from the common law, that when there is nothing to indicate a contrary intent in a statute it will be presumed that the Legislature intended the statute to operate prospectively and not retroactively. That rule of construction, however, is not a straitjacket. Where the Legislature has not set forth in so many words what it intended, the rule of construction should not be followed blindly in complete disregard of factors that may give a clue to the legislative intent. It is to be applied only after, considering all pertinent factors, it is determined that it is impossible to ascertain the legislative intent.”

As noted previously, in Marriage of Bouquet this court stated: “Consistent with Estrada’s mandate, we must address ‘all pertinent factors’ when attempting to divine the legislative purpose. A wide variety *126of factors may illuminate the legislative design, ‘such as context, the object in view, the evils to be remedied, the history of the times and of legislation upon the same subject, public policy, and contemporaneous construction.’ ” (In re Marriage of Bouquet, supra, 16 Cal.3d at pp. 587588, quoting Alford v. Piemo, supra, 27 Cal.App.3d atp. 688.) Consideration of many of these factors has already been shown to lead inescapably to the conclusion that the Legislature intended the 1977 death penalty statute to have retroactive effect. Another factor leading to the same conclusion was discussed in Bouquet: the presumption that an amendment to cure constitutional defects in a statute is intended to apply retroactively.

In Bouquet, as the majority state, we faced the “question whether to apply amended Civil Code section 5118, which provided that the earnings of both spouses while living apart were separate property, or former section 5118 under which only the wife’s earnings were separate property.” (Ante, p. 118, fn. 9.) “The probable constitutional infirmity of the former law,” we noted, “does lend some support to the conclusion that the Legislature intended the amendment to have retroactive effect. We assume that the Legislature was aware of judicial decisions; we thus assume that the Legislature knew of the dubious constitutional stature of the sexually discriminating old law. We may reasonably infer, therefore, that the Legislature wished to replace the possibly infirm law with its constitutionally unobjectionable successor as soon as possible.” (16 Cal.3d at p. 588, citation omitted.)

The element of speculation, which deprived the argument of some of its force in Bouquet, is entirely absent here. While former Civil Code section 5118 was arguably unconstitutional, the 1973 death penalty statute had been expressly so declared by this court. It was necessary in Bouquet to assume that the Legislature was aware of judicial decisions and, thus, aware of the dubious constitutionality of former section 5118. In this case, however, the Legislature expressly stated that it was acting because “The California Supreme Court has declared the existing death penalty law unconstitutional.” (Stats. 1977, ch. 316, § 26.) Finally, in Bouquet the conclusion that the Legislature intended the constitutionally unobjectionable new law to take effect “as soon as possible,” that is, to have retroactive effect, was a matter of inference. In this case, again, the Legislature expressly so stated: “This act remedies the constitutional infirmities found to be in existing law, and must take effect immediately in order to guarantee the public the protection inherent in an operative death penalty law.” (Id.)

*127The majority seek to distinguish Bouquet on two grounds. First, they note that “the fundamental principle of statutory construction, embodied in Penal Code section 3, which negates any retroactive operation of new penal sanctions was not applicable in that case” because it involved a civil statute governing the property rights of married, but separated, persons. (Ante, p. 118, fn. 9.) This distinction clearly fails in light of section 3 of the Civil Code, the word-for-word counterpart of section 3 of the Penal Code, which provides that no part of the Civil Code “is retroactive, unless expressly so declared.”

The second attempted distinction: In Bouquet this court was faced with the alternative of applying the former, arguably unconstitutional law or the amended, constitutional law. “In the case at bar, however, the inapplicability of the 1977 law does not leave the state with no criminal sanctions against defendant. Defendant, like all other persons who committed first degree murder prior to the enactment of the 1977 legislation, is subject to a sentence of life imprisonment as provided by the criminal statutes in effect at the time of the commission of the offense.” (Ante, p. 118, fn. 9.)

What the majority are saying, in effect, is that life imprisonment with possibility of parole affords Californians adequate protection from men like Gregory Teron. But Californians disagree. As previously stated, the Legislature expressly declared the 1977 statute “must take effect immediately in order to guarantee the public the protection inherent in an operative death penalty law.” When this court declared capital punishment unconstitutional in Anderson, the people directly nullified that decision by approving Proposition 17. When intervening decisions of the United States Supreme Court indicated the probable invalidity of the existing statute under the federal Constitution, the Legislature enacted the 1973 death penalty statute. When that statute was declared unconstitutional in Rockwell, the Legislature enacted the 1977 statute. Finally, not entirely satisfied with the extent of the protection afforded them by the 1977 statute," the people last year approved Proposition 7.

We now return to the principle of statutory construction with which we began this discussion: While the Legislature is presumed to intend an amendatory statute mitigating or reducing punishment be applied retroactively, the Legislature is presumed to intend an amendatory statute increasing punishment be applied only prospectively.

The ground for this distinction is clear. The constitutional prohibition against ex post facto laws prevents application of an amended statute *128increasing punishment to crimes previously committed, but does not prevent application to such crimes of an amended statute mitigating or reducing punishment. (See, e.g., People v. Ward (1958) 50 Cal.2d 702 [328 P.2d 777].) The Legislature is presumed not to intend to enact a statute offending the Constitution. (City of Los Angeles v. Belridge Oil Co. (1957) 48 Cal.2d 320, 324 [309 P.2d 417].) Therefore, an interpretation must be adopted which, consistent with the statute’s language and purpose, eliminates doubts as to its constitutionality. (In re Kay (1970) 1 Cal.3d 930, 942 [83 Cal.Rptr. 686, 464 P.2d 142].)

That the ex post facto prohibition is at the foundation, analytically, of the Estrada doctrine is apparent from even the most casual reading of the cases in that line of authority. In the seminal case of Sekt v. Justice’s Court (1945) 26 Cal.2d 297 [159 P.2d 17, 167 A.L.R. 833], for example, this court, considering “the legal effect of an amendatory act increasing the punishment,” cited with approval “substantial and well-reasoned authority to the effect that where the later statute increases the punishment the Legislature has clearly demonstrated its intent that the act should be punished, and since the offender cannot be punished under the new law because of the ex post facto provision of the Constitution, he will be held under the old law.” {Id., at p. 307.)

We ask ourselves, therefore, the following question: Did the Legislature have reason to believe the 1977 statute increased the punishment for defendant’s crime within the meaning of the ex post facto clause?

The answer to that question is clearly “No.” The Legislature completed its action on the 1977 statute by overriding the Governor’s veto on 11 August 1977. Nearly two months earlier, on 17 June 1977, the United States Supreme Court filed its decision in Dobbert v. Florida (1977) 432 U.S. 282 [53 L.Ed.2d 344, 97 S.Ct. 2290]. In Dobbert the high court held that functionally equivalent changes in Florida’s death penalty statute between the time of the trial and the time of the murder were procedural and on the whole ameliorative, and thus not in violation of the prohibition against ex post facto laws. As previously stated, the Legislature is presumed to be aware of judicial decisions. (In re Marriage of Bouquet, supra, 16 Cal.3d at p. 588.) Certainly the Legislature’s awareness of United States Supreme Court decisions bearing on the constitutionality of capital punishment is beyond question. Therefore, we must presume the Legislature, knowing that retroactive application of the 1977 statute *129would not violate the ex post facto clause, intended the legislation to have retroactive effect.2

The Dobbert opinion deserves further attention because it so clearly exposes the flaw in the majority’s argument. The majority recognize that while the 1973 statute provided a mandatory death penalty for defendant’s crime, the 1977 statute made his crime punishable by death or life imprisonment without possibility of parole, depending upon consideration of aggravating and mitigating circumstances. They nevertheless conclude that the 1977 statute increased the penalty for defendant’s offense. This conclusion is based on the assumption that, the 1973 statute having been declared unconstitutional in 1976, no death penalty was in effect for purposes of ex post facto analysis when defendant committed his crime in 1975. Such an analysis was rejected in Dobbert as a “sophistic argument [which] mocks the substance of the Ex Post Facto Clause.”

“Petitioner’s second ex post facto claim is based on the contention that at the time he murdered his children there was no death penalty ‘in effect’ in Florida. This is so, he contends, because the earlier statute enacted by the legislature was, after the time he acted, found by the Supreme Court of Florida to be invalid under our decision in Furman v. Georgia, 408 U.S. 238 (1972). Therefore, argues petitioner, there was no Valid’ death penalty in effect in Florida as of the date of his actions. But this sophistic argument mocks the substance of the Ex Post Facto Clause. Whether or not the old statute would, in the future, withstand constitutional attack, it clearly indicated Florida’s view of the severity of murder and of the degree of punishment which the legislature wished to impose upon murderers. The statute was intended to provide maximum deterrence, and its existence on the statute books provided fair warning as to the degree of culpability which the State ascribed to the act of murder.

“Petitioner’s highly technical argument is at odds with the statement of this Court in Chicot County Dist. v. Baxter State Bank, 308 U.S. 371, 374 (1940); ‘The courts below have proceeded on the theory that the Act of Congress, having been found to be unconstitutional, was not a law; that it was inoperative, conferring no rights and imposing no duties, and hence *130affording no basis for the challenged decree. [Citations.] It is quite clear, however, that such broad statements as to the effect of a determination of unconstitutionality must be taken with qualifications. The actual existence of a statute, prior to such a determination, is an operative fact and may have consequences which cannot justly be ignored.’ Here the existence of the statute served as an ‘operative fact’ to warn the petitioner of the penalty which Florida would seek to impose on him if he were convicted of first-degree murder. This was sufficient compliance with the ex post facto provision of the United States Constitution.” (Dobbert v. Florida, supra, 432 U.S. at pp. 297-298 [53 L.Ed.2d atpp. 358-359].)

The citizens of California sent this court a message in 1972 when they nullified Anderson by approving Proposition 17. By amending our charter to provide that the death penalty does not constitute cruel or unusual punishment or “contravene any other provision of this constitution,” our people indicated with unmistakable clarity that they consider capital punishment necessary to their safety and well being, and that this court is not to thwart their will in this regard. We cannot ignore that message without forfeiting their confidence.

The judgment convicting defendant of first degree murder and imposing the penalty of death should be affirmed without modification.

Respondent’s petition for a rehearing was denied February 8, 1979. Clark, J., was of the opinion that the petition should be granted.

Section 27, added to article I of the Constitution by Proposition 17, provides: “All statutes of this state in effect on February 17, 1972, requiring, authorizing, imposing, or relating, to the death penalty are in full force and effect, subject to legislative amendment or repeal by statute, initiative or referendum. [1] The death penalty, provided for under those statutes shall not be deemed to be, or to constitute, the infliction of cruel or unusual punishments within the meaning of Article I, Section 6 nor shall such punishment for such offenses be deemed to contravene any other provision of this constitution.”

My discussion has throughout been limited to the “special circumstances” involved in defendant’s crime. The 1977 statute added two other special circumstances not covered by the earlier legislation: (1) Willful, deliberate and premeditated murder perpetrated by means of a destructive device or explosive. (Pen. Code, § 190.2, subd. (b).) (2) Willful, deliberate and premeditated murder involving infliction of torture. (Pen. Code, § 190.2, subd. (c)(4).) Whether the Legislature intended either of these provisions to have retroactive effect is a question not before us, and as to which I express no opinion.