Hovey v. Superior Court

Citation168 Cal.Rptr. 128,28 Cal.3d 1,616 P.2d 1301
Decision Date28 August 1980
Docket NumberS.F. 24093
CourtCalifornia Supreme Court
Parties, 616 P.2d 1301 Richard Adams HOVEY, Petitioner, v. The SUPERIOR COURT OF ALAMEDA COUNTY, Respondent; The PEOPLE, Real Party in Interest.

James C. Hooley, Public Defender, Paul R. Trudell, Asst. Public Defender, Quin Denvir, State Public Defender, Michael G. Millman and Joseph Levine, Deputy State Public Defenders, and Samuel R. Gross, San Francisco, for petitioner.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., Robert R. Granucci and Herbert F. Wilkinson, Deputy Attys. Gen., for real party in interest.

Edwin L. Miller, Jr., Dist. Atty., Richard D. Huffman, Chief Deputy Dist. Atty. and Paul M. Morley, Deputy Dist. Atty., San Diego, as amici curiae on behalf of real party in interest.

Barry Tarlow, Los Angeles, as amicus curiae.

BIRD, Chief Justice.

This petition asks this court to decide whether a prospective juror who can be fair and impartial in determining the guilt or innocence of an individual accused of a capital offense may be removed for cause from serving at the guilt phase because the juror is unequivocally opposed to the imposition of the death penalty at the penalty phase?


By an information filed in the Alameda County Superior Court, petitioner, Richard Adams Hovey, stands accused of murder and kidnaping. (Pen.Code, §§ 187, 207.) 1 Two "special circumstances" are alleged in connection with the murder charge. 2 If petitioner is convicted of first degree murder Petitioner brought a pretrial motion to limit the exclusion for cause of prospective jurors to be called to try his case. The thrust of his motion was that the guarantee in the state and federal Constitutions to due process of law and an impartial jury 3 prohibit the trial court from excluding at the guilt phase of the trial prospective jurors who would be fair and impartial, but who are unequivocally opposed to imposing the death penalty at the penalty phase (should this second phase prove necessary). 4

[616 P.2d 1302] and if the special circumstances allegations are found to be true, the jury will determine whether the sentence is "death or confinement in the state prison for life without possibility of parole . . . ." (Former § 190.2.)

The evidentiary basis for petitioner's motion was developed at an extensive evidentiary hearing held in August and September 1979, in a separate proceeding in the same county. (People v. Kenneth Lynn Moore and David Lee Moore, Alameda Co.Super.Ct. No. 67113. 5 ) The Moore brothers' motion covered 17 court days and produced a reporter's transcript of more than 1,200 pages. Seven expert witnesses testified, five for the defense and two for the prosecution. In excess of 1,000 pages of exhibits-primarily sociological studies and graphs and charts-were admitted into evidence, as were several videotapes. By stipulation in the present case, these transcripts and exhibits were introduced at petitioner's motion. No new evidence was presented.

Petitioner's motion to limit exclusions for cause under section 1074, subdivision 8, was denied by the judge who ruled on the Moores' motion. Petitioner sought to invoke the original jurisdiction of this court by filing a petition for writ of mandamus. This court issued an alternative writ based on the importance of the issue presented. 6


California statutory law requires that following a challenge for cause, a prospective juror "must neither be permitted nor compelled to serve as a juror" in a capital case if he entertains "such conscientious opinions as would preclude his finding the defendant guilty . . . ." (§ 1074, subd. 8.) 7 Although the literal wording of section 1074, subdivision 8, authorizes removal for cause only when a juror's scruples would have an impact upon the determination of guilt, this statute has been judicially construed to require the exclusion of jurors whose views on capital punishment would affect their penalty determination alone. (People v. Riser, supra, 47 Cal.2d at pp. 573-576, 305 P.2d 1.) Riser was decided in an era when the jury in a death penalty case considered the issues of guilt and punishment simultaneously. 8 Section 1074, subdivision 8, appears to have been given an expansive interpretation in another respect. The statute authorizes the exclusion of jurors whose views "preclude" them from returning verdicts of guilt or death. Prior to 1968 this court held that jurors were properly excused for cause under the statute if they had any conscientious scruples against the infliction of the death penalty 10 or if they stated that they "did not believe in capital punishment." 11

[616 P.2d 1303] 8 However, Riser 's interpretation of section 1074, subdivision 8, was reaffirmed after the Legislature set forth a procedure for separate guilty and penalty phases in capital cases. (People v. Gilbert (1965) 63 Cal.2d 690, 711-712, 47 Cal.Rptr. 909, 408 P.2d 365; People v. Smith (1966) 63 Cal.2d 779, 789, 48 Cal.Rptr. 382, 409 P.2d 222.) 9

However, this court was not always consistent with respect to this aspect of the statute. For example, in People v. Bandhauer (1967) 66 Cal.2d 524, 531, 58 Cal.Rptr. 332, 337, 426 P.2d 900, 905, the court indicated that mere "doubts with respect to the death penalty . . . are not sufficient to disqualify a juror so long as he conscientiously believes that he could return a death penalty verdict in a proper case." (See also People v. Riser, supra, 47 Cal.2d at pp. 575-576, 305 P.2d 1 (suggesting that § 1074, subd. 8, compels the exclusion of jurors "incapable" of returning a death verdict); People v. Rollins (1919) 179 Cal. 793, 796, 179 P. 209, 210 (the statute excludes jurors who are "so bound by conscientious opinions as to capital punishment that they will be unable to act as the circumstances of the case demand in view of the law" (emphasis added)).)

This apparent conflict was conclusively resolved in June 1968 when the United States Supreme Court issued its landmark decision in Witherspoon v. Illinois (1968) 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776. In Witherspoon, a criminal defendant had been convicted of murder and sentenced to die. The prosecutor had removed for cause from the jury which had tried the case all individuals who "(had) conscientious scruples against capital punishment, or . . . (were) opposed to the same." 12 On appeal, the defendant argued that the jury was unconstitutionally biased in favor of conviction and death.

The Supreme Court reversed Witherspoon's death sentence but upheld his underlying murder conviction. With respect to the penalty imposed, the court held it to be "self-evident" 13 that if a state excuses prospective jurors for cause on the basis of "general objections to the death penalty or . . . conscientious or religious scruples The court did not reverse Witherspoon's substantive conviction for murder. It found the empirical studies tendered on his behalf on appeal "too tentative and fragmentary" to establish that the broad exclusion of jurors with scruples against capital punishment "results in an unrepresentative jury on the issue of guilt or substantially increases the risk of conviction." 19 (Id., at Nevertheless, the court indicated that the question was still an open one. 20 Indeed, in footnote 18 of its opinion, page 520, 88 S.Ct. at page 1776, the court noted that a defendant "in some future case might still attempt to establish that (a) jury (which had been 'death-qualified' in compliance with the newly announced Witherspoon standards) was less than neutral with respect to guilt." 21

                [616 P.2d 1304] against its infliction," 14 then the resulting jury "cannot speak for the community" 15 and is "uncommonly willing to condemn a man to die." 16  This, the court suggested, violates one of the "basic requirements of procedural fairness . . . (i. e.,) that the decision whether a man deserves to live or die must be made on scales that are not deliberately tipped toward death." 17  (Id., at pp. 521-522, fn. 20, 88 S.Ct. at p. 1777, fn. 20.)  The only prospective jurors who could constitutionally be excused for cause [28 Cal.3d 11] due to their opposition to or doubts about capital punishment were "those who made unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant's guilt." 18  (Id., at pp. 522-523, fn. 21, 88 S.Ct. at p. 1777, fn. 21, original emphasis.)
                [616 P.2d 1305] pp. 517, 518, 88 S.Ct. at p. 1775.)  Noting that Witherspoon had specifically declined to present evidence below in support of his contention, the court stated, "We can only speculate, therefore, as to the precise meaning of the terms used in those studies, the accuracy of the techniques employed, and the validity of the generalizations made."  (Id., at p. 517, fn. 11, 88 S.Ct. at p. 1774, fn. 11.)  On the issue of guilt, the court found "the record . . . 'almost totally lacking in the sort of factual information that would assist the Court.' "  (Id., at p. 518, fn. 11, 88 S.Ct. at p. 1774, fn. 11.)

In the 12 years since the Witherspoon decision, the Supreme Court has not addressed the constitutionality of using a "Witherspoon -qualified" jury to determine the issue of guilt or innocence in a capital case. 22 However, the court has expounded upon the Sixth Amendment's guarantee of "trial by impartial jury" in two pertinent cases.

In Taylor v. Louisiana (1975) 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 the Supreme Court reversed the state court criminal conviction of a male defendant, since women had been systematically excluded from the jury pool. 23 In doing so, the court held for the first time that the states were bound by a Sixth...

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    ...support of that claim. (People v. Pacheco (1981) 116 Cal.App.3d 617, 628, 172 Cal.Rptr. 269; see generally Hovey v. Superior Court (1980) 28 Cal.3d 1, 168 Cal.Rptr. 128, 616 P.2d 1301.) First, a defendant could contend that the exclusion of jurors who would automatically vote against death ......
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    ...verdict, explaining: "I really don’t know if he did it or not."Sandra D. reiterated her reluctance to impose the death penalty during the Hovey voir dire.2 She testified: "I just feel like I don’t want to be the one to say someone gets the death penalty. It’s like I’m killing someone." When......
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1 books & journal articles
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