Graham v. Superior Court

Citation98 Cal.App.3d 880,160 Cal.Rptr. 10
PartiesErnest GRAHAM and Eugene Allen, Petitioners, v. SUPERIOR COURT IN AND FOR the CITY AND COUNTY OF SAN FRANCISCO, Respondent; The PEOPLE, Real Party in Interest. Ernest GRAHAM, Petitioner, v. SUPERIOR COURT IN AND FOR the CITY AND COUNTY OF SAN FRANCISCO, Respondent; The PEOPLE, Real Party in Interest. Civ. 47698, Civ. 47723.
Decision Date20 November 1979
CourtCalifornia Court of Appeals

James Larson, Doron Weinberg, Larson, Weinberg & Harris, San Francisco, for Ernest Graham.

Carrow, Forest & Jordan by Robert D. Carrow, Phillip J. Abrams, Novato, for Eugene Allen.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., William D. Stein, Deputy Atty. Gen., San Francisco, for real party in interest.

CHRISTIAN, Associate Justice.

Ernest Graham and Eugene Allen seek a writ of mandate in 1/Civil 47698 to determine that the mandatory death penalty provision of Penal Code section 4500. Effective at the time of the offense with which they are charged, is unconstitutional.

The Supreme Court has recited the facts in an earlier appeal involving these petitioners as follows:

"On November 27, 1973, a state correctional officer was assaulted and stabbed numerous times while on duty in Deuel Vocational Institute, a state prison facility; the officer died the same day as a result of the injuries sustained in the attack. On December 5, 1973, the San Joaquin County Grand Jury returned a two-count indictment against defendants as a result of the incident; the indictment charged both with violation of Penal Code section 187 (murder) and section 4500 (aggravated assault by a life prisoner).

"On October 7, 1974, just prior to the first trial in this matter, the superior court dismissed the murder charge against each defendant upon motion of the district attorney; as a consequence, the two defendants went to trial solely on the section 4500 charges. The jury in the initial trial could not agree on a verdict and a mistrial was declared. Thereafter, defendants' motion for change of venue was granted and the case was transferred to the San Francisco Superior Court." (People v. Allen (1979) 23 Cal.3d 286, 290, 152 Cal.Rptr. 454, 456, 590 P.2d 30, 32.)

"On March 31, 1976, the jury returned a verdict finding both defendants guilty of violating Penal Code section 4500. On April 2, 1976, pursuant to the mandatory provisions of section 4500, the trial court sentenced each of the defendants to death. On appeal, defendants challenge both their convictions and their death sentences." (Id., at p. 292, 152 Cal.Rptr. at p. 457, 590 P.2d at p. 33.)

On automatic appeal, the Supreme Court reversed the judgment, holding that petitioners had established a prima facie case of unconstitutional use of peremptory challenges. The case was remanded for a new trial. (Id., p. 295, 152 Cal.Rptr. 454, 590 P.2d 30.)

Counsel for petitioners moved in the trial court for an order determining that the mandatory death penalty provisions of Penal Code section 4500 are unconstitutional. The motion was denied, and the present writ proceeding ensued.

In 1973, at the time of the attack which gave rise to the charges against petitioners, section 4500 1 provided a mandatory death penalty for malicious assault upon a non-inmate by a person undergoing a life sentence if the victim dies. 2 Petitioners contend the provision is unconstitutional because it does not allow mitigating factors to be taken into account in the sentencing of the prisoner convicted of the assault.

In 1976, the United States Supreme Court evaluated the capital punishment systems of several states to determine whether they met constitutional requirements for imposition of the death penalty. (Roberts v. Louisiana (1976) 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974; Woodson v. North Carolina (1976) 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944; Jurek v. Texas (1976) 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929; Proffitt v. Florida (1976) 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913; Gregg v. Georgia (1976) 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859.) In these cases the court declared that the death penalty statutes reviewed in the earlier case of Furman v. Georgia (1972) 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346, "were unconstitutional, not because they conferred discretion upon the sentencing authority, but because the discretion conferred was 'standardless.' " (Rockwell v. Superior Court (1976) 18 Cal.3d 420, 446, 134 Cal.Rptr. 650, 666, 556 P.2d 1101, 1117.) Mandatory standardless statutes were held to be unsatisfactory responses to the Furman decision, and the United States Supreme Court struck down the North Carolina and Louisiana statutes as constitutionally unacceptable. In these cases, and in the death penalty cases which followed, however, the Supreme Court has specifically Not held that all mandatory death penalty statutes would be constitutionally defective. For instance, in Gregg v. Georgia, supra, 428 U.S. at p. 186, 96 S.Ct. at p. 2931, the court remarked that "there are some categories of murder, such as murder by a life prisoner, where other sanctions may not be adequate." In Woodson v. North Carolina, supra, 428 U.S. at p. 287 n. 7, 96 S.Ct. at p. 2983 n. 7, the same justices noted: "This case does not involve a mandatory death penalty statute limited to an extremely narrow category of homicide, such as murder by a prisoner serving a life sentence, defined in large part in terms of the character or record of the offender. We thus express no opinion regarding the constitutionality of such a statute. See n.25, infra." (See also Lockett v. Ohio (1978) 438 U.S. 586, 604 n. 11, 98 S.Ct. 2954, 57 L.Ed.2d 973; Roberts v. Louisiana (1977) 431 U.S. 633, 637 n. 5, 97 S.Ct. 1993, 52 L.Ed.2d 637; Roberts v. Louisiana, supra, 428 U.S. 325, 334 n. 9, 96 S.Ct. 3001, 49 L.Ed.2d 974.)

The California Supreme Court has held unconstitutional the California statutory scheme which permitted the imposition of the death penalty as punishment for first degree murder when any of the special circumstances charged in an accusatory pleading was found by the trier of fact. The majority opinion did not mention the mandatory death penalty of section 4500 but concluded in its discussion of Gregg v. Georgia : "The aspects of the Georgia scheme which a majority of the court considered essential to its constitutionality therefore appear to be the narrowly defined aggravating factors or categories of murder for which capital punishment is authorized and the opportunity for the defendant to present evidence and argument on and to have the jury consider mitigating circumstances with respect to both the commission of the offense and his personal characteristics which militate against imposition of the extreme penalty." (Rockwell v. Superior Court, supra, 18 Cal.3d 420, 432, 134 Cal.Rptr. 650, 657, 556 P.2d 1101, 1108; see also People v. Frierson (1979) 25 Cal.3d 142, 176, 158 Cal.Rptr. 281, 599 P.2d 587.)

The People contend that former section 4500 is so narrowly drawn that its definition manifests an adequate consideration of aggravating and mitigating factors: it applies the mandatory death penalty only to a malicious killing and only to a life prisoner. These qualifications, however, encompass a wide range of personal culpability. A malicious killing not covered by section 4500 may be either first or second degree murder, a division made in recognition of the "difference in the quantum of personal turpitude of the offenders." (People v. Holt (1944) 25 Cal.2d 59, 89, 153 P.2d 21, 37.) The classification of life prisoner covers an even broader range of culpability as well as 57 percent of the 1973 prison population. Under the indeterminate sentencing law in effect at the time of the offense, a life prisoner could be serving a sentence for first degree murder or a sentence for robbery of the second degree. Section 4500, therefore, could apply to a person who might hope to be released from prison in months as well as to one who might expect to remain there for many years.

The Supreme Court of Rhode Island recently considered the constitutionality of a death penalty statute enacted in response to a series of disturbances at Rhode Island prisons which culminated in the killing of a prison guard. The statute provided a mandatory death penalty for any person who committed murder while confined in prison. Although this statute applies to all prisoners, not just to all prisoners serving a life term, it was not an analysis of the classification that prompted the court to hold the statute unconstitutional. The statute was held to be defective because it contained "no provision for the trial justice, in imposing sentence, to consider any mitigating factors whatsoever." (State v. Cline (R.I.1979) 397 A.2d 1309, 1311.)

The mitigating and aggravating factors which a trial judge must consider before deciding upon the death penalty are factors personal to the defendant and the crime. They include such things as the age of the defendant, his degree of direct involvement in the assault, the extent of premeditation or deliberation in the commission of the crime, the influence of drugs, alcohol or mental illness, whether any form of duress existed, whether the defendant reasonably believed his act was morally justified, whether there was some provocation not amounting to a defense. (See § 190.4.) These are factors which should be considered even when the victim is a police officer, who, like a prison guard, holds a dangerous position and one the state has a special interest in protecting. (Roberts v. Louisiana, supra, 431 U.S. at pp. 636-637, 97 S.Ct. 1993.)

The People's second major argument is that hinted at in Gregg v. Georgia, i. e., that only a mandatory death penalty is adequate to protect the prison guard from assault by a life prisoner. The theory is that the life prisoner...

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  • People v. Landry, S100735
    • United States
    • California Supreme Court
    • December 12, 2016
    ...280, 96 S.Ct. 2978 [striking down statute making the death penalty mandatory for first degree murder]; Graham v. Superior Court (1979) 98 Cal.App.3d 880, 160 Cal.Rptr. 10 [declaring unconstitutional a 1973 version of section 4500 that contained a mandatory death penalty provision].) From th......
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    ...U.S. 280, 96 S.Ct. 2978 [striking down statute making the death penalty mandatory for first degree murder]; Graham v. Superior Court (1979) 98 Cal.App.3d 880, 160 Cal.Rptr. 10 [declaring unconstitutional a 1973 version of section 4500 that contained a mandatory death penalty provision].) Fr......
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