Harris v. Pulley

• Citation: 692 F.2d 1189
• Decision Date: 15 November 1982
• Docket Number: No. 82-5246,82-5246
• Parties: Robert Alton HARRIS, Petitioner, v. R. PULLEY, Warden of the California State Prison at San Quentin, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1189

692 F.2d 1189

Robert Alton HARRIS, Petitioner, v. R. PULLEY, Warden of the California State Prison at San Quentin, Respondent.

No. 82-5246.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 11, 1982.

Decided Sept. 16, 1982.

As Amended on Denial of Rehearing and Rehearing En Banc Nov. 15, 1982.

Michael J. McCabe, Savitz & McCabe, San Diego, Cal., for petitioner.

Charles M. Sevilla, Public Defender, San Diego, Cal., amicus curiae.

Michael D. Wellington, Deputy Atty. Gen., San Diego, Cal., for respondent.

Appeal from the United States District Court for the Southern District of California.

Before CHOY, ANDERSON and CANBY, Circuit Judges.

PER CURIAM:

Robert Harris, a California state prisoner who was sentenced to death for the murder of two teenage boys, appeals from the district court's denial of his habeas corpus petition brought under 28 U.S.C. Sec. 2254. Because the California Supreme Court did not undertake a proportionality review of the application of the death penalty in this case, we vacate the district court's denial of the petition and instruct the district court to grant the petition relieving petitioner from his sentence of death unless the California Supreme Court undertakes, within a reasonable time not to exceed 120 days from the date this order is filed, the proportionality review announced in People v. Frierson, 25 Cal.3d 142, 183, 158 Cal.Rptr. 281, 599 P.2d 587 (1979) (plurality opinion), and People v. Jackson, 28 Cal.3d 264, 312, 168 Cal.Rptr. 603, 618 P.2d 149 (1981). If it becomes necessary, the district court should examine the California Supreme Court's proportionality decision to make certain that it is consistent with Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976), and Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). To facilitate the district court's consideration of the numerous other issues Harris has raised, if such is necessary, we also review his other contentions.

I. The Constitutionality of the California Death Penalty Statute

California has established by statute an elaborate procedural mechanism for the imposition of the death penalty. If a jury convicted the defendant of first degree murder, the same jury must also generally determine whether the special circumstances are true, Cal. Penal Code Sec. 190.4 (Deering 1977), ¹ and, if necessary, the penalty. Id. Sec. 190.3. Even if the trial judge acted as the fact finder, a jury must determine the special circumstances unless the defendant and the people waive this right. Id. at Sec. 190.4. Once the defendant has been found guilty of first degree murder, the procedure is divided into the special-circumstances stage and the sentencing stage. See People v. Superior Court, 31 Cal.3d 797, 803, 183 Cal.Rptr. 800, 647 P.2d 76 (1982). First, the jury must determine the truth of any special circumstances the prosecution has charged. Cal. Penal Code Sec. 190.1(b). The jury cannot impose the death penalty unless it first finds at least one statutorily specified special circumstance to be true beyond a reasonable doubt. Id. If it finds the special circumstance true, the jury must then move to the sentencing stage: reviewing the mitigating and aggravating circumstances to determine whether the death penalty should be imposed. Id. Sec. 190.3.

Once the jury finds that the death sentence should be imposed, the trial judge reviews the evidence to determine whether the jury's findings and verdict are supported by the evidence. The judge must then state on the record the reasons for the findings. Id. Sec. 190.4(e). The statute also provides for an expeditious, automatic appeal to the California Supreme Court, although the scope and content of the review the court must give is not defined. Id. Sec. 190.6.

Harris argues that this procedure for imposing the death penalty violates the eighth amendment's prohibition against cruel and unusual punishment made applicable to the State of California by the fourteenth amendment because the procedure does not guide jury discretion to produce rational or consistent death sentences. In particular, Harris contends that the 1977 capital-punishment statute under which he was sentenced is deficient because (1) it fails to provide unambiguous objective standards to guide and focus the sentencing authority's discretion; (2) it fails to establish the burden of proof a fact finder must use in weighing the aggravating and mitigating circumstances; (3) it fails to require the sentencing authority to furnish a written statement of the basis upon which it decided to impose the death penalty; and (4) it fails to provide for meaningful and effective proportionality review.

We review the constitutionality of California's 1977 death-penalty statute on the basis of the standards established in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) and their progeny. The primary concerns the Court has expressed in discussing the death penalty have been the need for guidance of the fact finder's discretion and an opportunity for review of the exercise of that discretion. The Court has thus upheld statutes providing for jury consideration of aggravating and mitigating factors, written findings stating reasons for imposition of the penalty, and a procedure designed to ensure proportionality review. See Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978); Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). These are, then, the guiding principles we follow in determining the constitutionality of a state's death-penalty statute.

A. Objective Standards

Harris contends that the California death-penalty statute violates the eighth and fourteenth amendments because it places no limit on the prosecution's introduction of evidence of aggravating factors. Cal.Penal Code Sec. 190.3. Harris also argues that the statute's failure to require that the jury specify whether the factors the jury considers in imposing the death penalty are mitigating or aggravating impermissibly broadened the jury's discretion. We reject both of these contentions.

The California statute does not limit the introduction of evidence of either mitigating or aggravating circumstances, but it does require that certain specified factors be taken into account. Id. The California Supreme Court has interpreted this section as not limiting the admission of evidence to matters relevant to the specified mitigating or aggravating factors. People v. Murtishaw, 29 Cal.3d 733, 773, 175 Cal.Rptr. 738, 631 P.2d 446 (1981).

The United States Supreme Court has upheld a death-penalty statute that permitted a jury to consider any aggravating or mitigating circumstance otherwise authorized by law so long as one statutory aggravating factor was identified before the death penalty was imposed. See Gregg v. Georgia, 428 U.S. at 206, 96 S.Ct. at 2940 (plurality opinion noting terms of statute). In Proffitt v. Florida, the Court also upheld a sentencing statute that allowed the jury to consider nonstatutory, aggravating factors. See Proffitt v. Florida, 428 U.S. at 256-57 n.14, 96 S.Ct. at 2968-69 n.14 (suggesting that consideration is proper as long as penalty not based solely on nonstatutory factors). And a plurality of the Supreme Court has noted that, to meet constitutional requirements, a death penalty statute must not preclude consideration of relevant mitigating factors. See Lockett v. Ohio, 438 U.S. at 608, 98 S.Ct. at 2966.

These cases suggest that, although the irregular or selective application of the penalty is to be avoided, the consideration of nonstatutory mitigating or aggravating circumstances is not objectionable in itself, as long as at least one statutory circumstance is found before the death penalty is imposed. Because the judge found several statutory aggravating circumstances in this case, we see no constitutional problem here. Moreover, under the statute, the jury must consider certain factors in weighing aggravating and mitigating circumstances, see Cal.Penal Code Sec. 190.3. These required factors provide jury guidance and lessen the chance of arbitrary application of the death penalty.

We note that the Fifth Circuit seems to have decided that the consideration of nonstatutory aggravating circumstances impermissibly increases jury discretion. See Henry v. Wainright, 661 F.2d 56, 58-60 (5th Cir. 1981) (introduction and consideration of nonstatutory aggravating factors error under Florida sentencing statute), vacated and remanded on other grounds, --- U.S. ----, 102 S.Ct. 2922, 73 L.Ed.2d ---- (1982). To the extent our conclusion here is inconsistent with Henry v. Wainright, we reject the Fifth Circuit's ruling.

Nor do we think that the statute's failure to label factors as aggravating or mitigating invalidates the statute. The Supreme Court has previously upheld a statute that did not explicitly identify factors as aggravating or mitigating but merely asked the jury to answer several particular questions. See Jurek v. Texas, 428 U.S. at 270-73, 96 S.Ct. at 2955-57 (plurality opinion). Because the California statute establishes factors to guide the jury's discretion and allows for consideration of the particular aggravating and mitigating circumstances in this case, the statute is not unconstitutional in this respect.

B. Burden of Proof

Harris contends that the statute's failure to specify the state's burden of proof in the second sentencing stage--determining whether the aggravating factors outweigh the mitigating ones--violates due process because it results in jury capriciousness. He argues that the state must prove beyond a reasonable doubt that the death penalty is appropriate. These contentions are...