In re Hawthorne, S116670.

• Decision Date: 10 February 2005
• Docket Number: No. S116670.,S116670.
• Citation: 35 Cal.4th 40,105 P.3d 552,24 Cal.Rptr.3d 189
• Court: California Supreme Court
• Parties: In re Anderson HAWTHORNE, Jr., on Habeas Corpus.

24 Cal.Rptr.3d 189

35 Cal.4th 40

105 P.3d 552

In re Anderson HAWTHORNE, Jr., on Habeas Corpus.

No. S116670.

Supreme Court of California.

February 10, 2005.

Rehearing Denied March 16, 2005.¹

Maria E. Stratton, Federal Public Defender, Sean Kennedy and Harry Simon, Deputy Federal Public Defenders, for Petitioner Anderson Hawthorne.

Michael Laurence; Michael J. Hersek, State Public Defender; and Michael Millman, Miami, FL, for Habeas Corpus Resource Center, Office of the State Public Defender, and California Appellate Project as Amici Curiae on behalf of Petitioner Anderson Hawthorne.

Michele Uzeta for Protection & Advocacy, Inc., as Amicus Curiae on behalf of Petitioner Anderson Hawthorne.

John T. Philipsborn, San Francisco, and Charles R. Weisselberg for California Attorneys for Criminal Justice as Amicus Curiae on behalf of Petitioner Anderson Hawthorne.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, john R. Gorey, Keith H. Borjon and Robert S. Henry, Deputy Attorneys General for Respondent State of California.

James W. Ellis, Steven K. Homer, Albuquerque, NM, and Carol M. Suzuki for the American Association of Mental Retardation and The Arc of the United States as Amici Curiae.

BROWN, J.

Petitioner Anderson Hawthorne, Jr., is under a judgment of death. He challenges his sentence as cruel and unusual punishment based on allegations he is mentally retarded. Under the authority of Penry v. Lynaugh (1989) 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256, we denied three previous petitions for writ of habeas corpus raising this same claim. Subsequently, however, the United States Supreme Court overruled Penry and held that execution of the mentally retarded violates the Eighth Amendment. (Atkins v. Virginia (2002) 536 U.S. 304, 321, 122 S.Ct. 2242, 153 L.Ed.2d 335 (Atkins).) Thereafter, petitioner filed this fourth petition asserting a single claim for relief under Atkins.

While the matter was pending, the California Legislature enacted Penal Code section 1376 (section 1376), which sets forth the standards and procedures for determining whether a defendant against whom the prosecution seeks the death penalty is mentally retarded within the meaning of Atkins. (Stats.2003, ch. 700, § 1.) By its terms, section 1376 applies only to preconviction proceedings. We issued an order to show cause to determine how to resolve postconviction claims of mental retardation. (Cf. In re Steele (2004) 32 Cal.4th 682, 10 Cal.Rptr.3d 536, 85 P.3d 444.) For the reasons discussed below, we conclude that such claims should be adjudicated in substantial conformance with the statutory model. Since petitioner has met the threshold showing of mental retardation, the matter will be transferred to the superior court for an evidentiary hearing on that question in accordance with the definitional standards set forth in section 1376.

DISCUSSION

Although, as a constitutional principle, execution of the mentally retarded violates the Eighth Amendment, the United States Supreme Court "`le[ft] to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.' [Citation.]" (Atkins, supra, 536 U.S. at p. 317,122 S.Ct. 2242.) The California Legislature responded by enacting section 1376, applicable in "any case in which the prosecution seeks the death penalty." (§ 1376, subd. (b)(1).) The statute defines "`mentally retarded'" as "the condition of significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested before the age of 18." (Id., subd. (a); see Atkins, at p. 309, fn. 3, 122 S.Ct. 2242; see also id. at p. 309, fn. 5, 122 S.Ct. 2242.) "Upon the submission of a declaration by a qualified expert stating his or her opinion that the defendant is mentally retarded, the court shall order a hearing to determine whether the defendant is mentally retarded." (§ 1376, subd. (b)(1).)² The defendant may request either that the court hear the claim prior to trial or that the jury decide the question following a guilty verdict and special circumstance finding. (Ibid.) The trial court may order the defendant examined by one or more qualified experts. (Id., subd. (b)(2).)³ The defendant must also submit to an examination by a prosecution expert. (Centeno v. Superior Court (2004) 117 Cal.App.4th 30, 39-41, 11 Cal.Rptr.3d 533; cf. People v. Carpenter (1997) 15 Cal.4th 312, 412, 63 Cal.Rptr.2d 1, 935 P.2d 708 [tendering issue of mental condition waives Fifth and Sixth Amendment rights at penalty phase].) At the hearing, the defendant bears the burden of proof by a preponderance of the evidence, and any jury verdict must be unanimous. (§ 1376, subd. (b)(3).)⁴

The new legislation makes no provision for cases in which the death penalty has already been imposed. The task thus falls to this court to formulate appropriate procedures for resolving postconviction claims.

We are not alone in confronting this gap in the law. Following Penry v. Lynaugh, supra, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256, the Georgia Legislature enacted the first statutory ban on execution of the mentally retarded. Like section 1376, it applies only preconviction. With respect to postconviction claims, the Georgia Supreme Court determined in Fleming v. Zant (1989) 259 Ga. 687, 386 S.E.2d 339, that "[w]hen a defendant who was tried before the effective date of [the operative statute] alleges in a petition for habeas corpus that he or she is mentally retarded, the habeas corpus court must first determine whether the petitioner has presented sufficient credible evidence, which must include at least one expert diagnosis of mental retardation, to create a genuine issue regarding petitioner's retardation. The court, in its discretion, may hold a hearing on the issue, or may make the determination based on affidavits, depositions, documents, etc. If, after examining the evidence, the habeas corpus court finds that there is a genuine issue, a writ shall be granted for the limited purpose of conducting a trial on the issue of retardation only. This trial shall be held in the court in which the original trial was conducted. Petitioner shall be entitled to a full evidentiary hearing on the issue of retardation. The determination shall be made by a jury using the definition of retardation enunciated in the statute. [Citation.] The petitioner will bear the burden of proving retardation by a preponderance of the evidence. The jury shall not be bound by the opinion testimony of expert witnesses or by test results, but may weigh and consider all evidence bearing on the issue of mental retardation." (Id. at pp. 342-343, fn. omitted; see Zant v. Beck (1989) 259 Ga. 756, 386 S.E.2d 349, 351; Ga.Code Ann. § 17-7-131.)

Oklahoma's statute likewise operates prospectively only. In Lambert v. State (Okla.Crim.App.2003) 71 P.3d 30, the Oklahoma Supreme Court addressed a claim of mental retardation in a case that predated the legislation. Finding that the defendant had "raised sufficient evidence to create a question of fact on the issue of mental retardation" (id. at p. 31), the court remanded the question to the trial court for further proceedings with the following directions: "The hearing [ — solely on the question of Lambert's mental retardation — ] shall be conducted after complete discovery is afforded both parties under the Oklahoma Criminal Discovery Code. The District Court shall empanel a jury of twelve persons, granting each party nine peremptory challenges. As Lambert has the burden of proof, he shall open his case first, present evidence first, and have the opportunity to present the first and last closing arguments. Each party may have Lambert examined by an expert, and may present that expert testimony in support of the claim that Lambert is or is not mentally retarded by a preponderance of the evidence. The jury shall be instructed using a modified version of the jury instruction provided in Murphy [v. State (Okla.2002) 54 P.3d 556, 567-568, 570 (defining mental retardation in terms substantially similar to § 1376)]. If the jury finds Lambert has shown he is mentally retarded by a preponderance of the evidence, it shall indicate that finding on a verdict form." (Lambert, at pp. 31-32, fns. omitted; see Murphy, at p. 569.)

Neither Ohio nor Louisiana has a statutory bar to executing the mentally retarded. The holding in Atkins thus left to the state supreme courts the responsibility of devising appropriate standards and procedures. (See State v. Williams (La.2002) 831 So.2d 835; State v. Lott (2002) 97 Ohio St.3d 303, 779 N.E.2d 1011; see also Wiley v. State (Miss.2004) 890 So.2d 892, 894-895, 2004 WL 1902428, *3-4.) Both courts required a threshold showing of mental retardation. (Williams, at p. 861 [trial court must have "`reasonable grounds' to believe a defendant is mentally retarded"]; Lott, at p. 1014 [based on IQ tests and affidavits of family and friends, defendant's mental retardation was "a disputed factual issue"].) The Louisiana court applied the statutory definition of mental retardation utilized "for the purpose of determining those individuals who qualify for mental retardation and developmental disabilities services" (Williams, at p. 853), which is essentially the same as California's definition, but with manifestation required by age 22 rather than 18. (Id. at pp. 853-854.) The Ohio court adopted the clinical definitions referenced in Atkins, which likewise conform to section 1376. (Lott, at p. 1014.) Both courts provided for an evidentiary hearing and allocated the burden of proof to the defendant by a preponderance of the evidence. However, they reserved the question of mental retardation to the trial court only. (Williams, at pp. 854, 859-860; Lott, at pp. 1015-1016.)

We conclude a similar approach — tracking section 1376 as closely as logic and...