People v. Anderson

Decision Date18 February 1972
Docket NumberCr. 13617
CourtCalifornia Supreme Court
Parties, 493 P.2d 880 The PEOPLE, Plaintiff and Respondent, v. Robert Page ANDERSON, Defendant and Appellant. In Bank

Neri Ramos and Jerome B. Falk, Jr., San Francisco, under appointments by the Supreme Court, and Anthony G. Amsterdam, Stanford, for defendant and appellant.

Ernest L. Graves, Renzi & Kilbride, Fred T. Kilbride, Los Angeles, gerald N. Gottlieb and Earl Klein, Beverly Hills, as amici curiae on behalf of defendant and appellant.

Thomas C. Lynch and Evelle J. Younger, Attys. Gen., William E. James, Asst. Atty. Gen., Thomas Kally and Ronald M. George, Deputy Attys. Gen., for plaintiff and respondent.

WRIGHT, Chief Justice.

A jury found Robert Page Anderson guilty of first degree murder, the attempted murder of three men, and first degree robbery and fixed the penalty at death for the murder. The judgment was affirmed. (People v. Anderson (1966) 64 Cal.2d 633, 51 Cal.Rptr. 238, 414 P.2d 366.) Thereafter the remittitur was recalled and the judgment was reversed insofar as it related to the death penalty under the compulsion of Witherspoon v. Illinois (1968) 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776. (In re Anderson (1968) 69 Cal.2d 613, 73 Cal.Rptr. 21, 447 P.2d 117.)

A second trial was had on the issue of the penalty for the murder, and the jury again imposed the death penalty. A motion for a new trial was denied, and this appeal is now before us automatically under subdivision (b) of Penal Code section 1239.

Defendant contends that error was committed in selecting the jury, that certain evidence was improperly admitted, that the prosecutor was guilty of prejudicial misconduct, and that the death penalty constitutes both cruel and unusual punishment and, as such, contravenes the Eighth Amendment to the United States Constitution and article I, section 6, of the Constitution of California. We have concluded that capital punishment is both cruel and unusual as those terms are defined under article I, section 6, of the California Constitution, and that therefore death may not be exacted as punishment for crime in this state. Because we have determined that the California Constitution does not permit the continued application of capital punishment, we need not consider whether capital punishment may also be proscribed by the Eighth Amendment to the United States Constitution. 1

The California Constitution

Before undertaking to examine the constitutionality of capital punishment in light of contemporary standards, it is instructive to note that article I, section 6, of the California Constitution, 2 unlike the Eighth Amendment to the United States Constitution, 3 prohibits the infliction of cruel Or unusual punishments. Thus, the California Constitution prohibits imposition of the death penalty if, judged by contemporary standards, it is either cruel or has become an unusual punishment.

Some commentators have suggested that the reach of the Eighth Amendment and that of article I, section 6, are coextensive, and that the use of the disjunctive form in the latter is insignificant. 4 Our review of the history of the California provision persuades us, however, that the delegates to the Constitutional Convention of 1849, who first adopted the section which was later incorporated into the Constitution of 1879, were aware of the significance of the disjunctive form and that its use was purposeful.

The California prohibition of cruel or unusual punishment first appeared as part of the 'Declaration of Rights' proposed by the Select Committee of the Constitutional Convention as article I of the Constitution to be drafted by the House of Delegates. When proposed on September 7, 1849, section V of article I declared: 'Excessive bail shall not be required, nor excessive fines imposed, nor shall cruel And unusual punishment be inflicted, nor shall witnesses be unreasonably detained.' 5 (Italics added.) But for the addition of the 'witness' clause, the proposed section was identical to the Eighth Amendment to the United States Constitution. The delegates were advised when the Declaration of Rights was first proposed that the first eight sections had been taken from the Constitution of New York and that all others were from the Constitution of Iowa. 6 On September 8, 1849, the convention resolved into a committee of the whole and adopted the fifth section without debate. Nor was there any debate on the section during the following month. On October 10, 1849, however, when the House of Delegates adopted the section it specified that cruel Or unusual punishments were prohibited. The reporter of the debates stated only that 'Article I of the constitution on the 'Declaration of Rights,' was taken up, read the third time, a few verbal errors corrected, and then passed.' 7

Article I, section 5, of the 1846 Constitution of New York, the first New York Constitution to include such a prohibition, Proscribed cruel And unusual punishments. 8 The 1846 Iowa Constitution, after which many of the sections of the proposed Declaration of Rights were patterned, also proscribed cruel And unusual punishments. 9 Thus, it is apparent that the delegates did not make the change in order to correct a 'verbal error' in transcribing the provision from the New York original, nor was it an attempt to conform it to the Iowa Constitution.

Although the delegates to the convention were limited in their access to models upon which to base the proposed California Constitution at the commencement of their deliberations, 10 by the end of the convention they had access to the constitutions of every state. 11 At least 20 state constitutions were mentioned by delegates during the debates. 12 The majority of those which included declarations of rights or equivalent provisions differed from the New York, Iowa, and United States Constitutions and did not proscribe cruel And unusual punishments. Rather, they prohibited 'cruel punishments,' 13 or 'cruel or unusual punishments.' 14 Several had provisions requiring that punishment be proportioned to the offense 15 and some had dual provisions prohibiting cruel and/or unusual punishments and disproportionate punishments. 16

The fact that the majority of constitutional models to which the delegates had access prohibited cruel or unusual punishment, and that many of these models reflected a concern on the part of their drafters not only that cruel punishments be prohibited, but that disproportionate and unusual punishments also be independently proscribed, persuades us that the delegates modified the California provision before adoption to substitute the disjunctive 'or' for the conjunctive 'and' in order to establish their intent that both cruel punishments and unusual punishments 17 be outlawed in this state. 18 In reaching this conclusion we are mindful also of the well established rules governing judicial construction of constitutional provisions. We may not presume, as respondent would have us do, that the framers of the California Constitution chose the disjunctive form 'haphazardly,' nor may we assume that they intended that it be accorded any but its ordinary meaning. (Los Angeles Met. Transit Authority v. Public Util. Com. (1963) 59 Cal.2d 863, 869, 31 Cal.Rptr. 463, 382 P.2d 583; Lockhart v. Wolden (1941) 17 Cal.2d 628, 631, 111 P.2d 319.)

The same rules of construction require that wherever possible we construe constitutional provisions in such a way as to reconcile potential conflict among provisions and give effect to each. (People v. Western Air Lines, Inc. (1954) 42 Cal.2d 621, 637, 268 P.2d 723.) It has been suggested that we are therefore restrained from considering whether capital punishment is proscribed by article I, section 6, since the death penalty is expressly or impliedly recognized in several other provisions of the California Constitution. 19 We perceive no possible conflict or repugnance between those provisions and the cruel or unusual punishment clause of article I, section 6, however, for none of the incidental references to the death penalty purport to give its existence constitutional stature. They do no more than recognize its existence at the time of their adoption. Thus, the bail clause of article I, section 6, restricts the right to bail in capital cases; the due process clause of article I, section 13, ensures that life will not be taken without due process; and section 8 of article I allows felony defendants represented by counsel to plead guilty at an arraignment before a magistrate only in noncapital cases. Similarly, section 8 of article V gives the Governor power to reprieve and section 11 of article VI vests this court with appellate jurisdiction in cases in which the death penalty has been imposed. None of these provisions can be construed as an affirmative exemption of capital punishment from the compass of the cruel or unusual punishment clause of article I, section 6.

The provisions of sections 6 and 13 of article I which recognize the existence of capital punishment were carried over into the Constitution of 1879 from the Constitution of 1849. Section 8 of article I was added in 1879 in a modification which discarded the former requirement that the prosecution in capital and other infamous crimes proceed by indictment and permitted instead the use of an information.

The Governor's power to reprieve also originated in the 1849 Constitution as section 13 of article V. It became part of section 1 of article VII of the 1879 Constitution, and, in 1966 was incorporated into the present section 8 of article V. This court was given appellate jurisdiction of all felonies by the Constitution of 1849, and by the Constitution of 1879 as originally adopted, but in 1904 an amendment to section 4 of article VI transferred direct appellate jurisdiction in criminal cases other than those in which the death...

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