Rockwell v. Superior Court

• Decision Date: 07 December 1976
• Citation: 134 Cal.Rptr. 650,18 Cal.3d 420,556 P.2d 1101
• Parties: , 556 P.2d 1101 Steven Douglas ROCKWELL, Petitioner, v. The SUPERIOR COURT OF VENTURA COUNTY, Respondent; The PEOPLE, Real Party in Interest. L.A. 30645. In Bank
• Court: California Supreme Court

Page 650

134 Cal.Rptr. 650

18 Cal.3d 420, 556 P.2d 1101

Steven Douglas ROCKWELL, Petitioner, v. The SUPERIOR COURT OF VENTURA COUNTY, Respondent The PEOPLE, Real Party in Interest.

L.A. 30645.

Supreme Court of California,

In Bank.

Dec. 7, 1976.

Rehearing Denied Jan. 5, 1977.

Richard E. Erwin, Public Defender, Kenneth Cleaver, Asst. Public Defender, for petitioner.

Wilbur F. Littlefield, Public Defender, Los Angeles, Dennis A. Fischer, Deputy Public Defender, Paul Halvonik, State Public Defender, Clifton R. Jeffers, Chief Asst. Public Defender, Ezra Hendon, Deputy State Public Defender, Jerome B. Falk, Jr., San Francisco, Anthony G. Amsterdam, Stanford, Jack Greenberg, James M. Nabrit III, Peggy C. Davis, New York City, Linda S. Greene, San Pedro, David Evan Kendall, New York City, William Bennett Turner Lowell Johnston, William E. Hickman, Danaher, Gunn & Klynn, Palo Alto, Charles C. Marson, Joseph Remcho, Robert Nicco, Public Defender, San Francisco, Sheldon Portman, Public Defender, Santa Clara, Kenneth M. Wells, Public Defender, Sacramento, and Ephraim Margolin, San Francisco, as amici curiae on behalf of petitioner.

No appearance for respondent.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Norman H. Sokolow and Howard J. Schwab, Deputy Attys. Gen., for real party in interest.

WRIGHT, Chief Justice.

Steven Douglas Rockwell petitions this court for a writ of prohibition to restrain the Ventura County Superior Court from proceeding with a retrial on 'special circumstances' allegations included in an information charging him with murder. We issued an alternative writ in response to his claim that the provisions of Penal Code sections 190 through 190.3, ¹ which permit the imposition of the death penalty as punishment for first degree murder when any of the special circumstances charged in an accusatory pleading is found by the trier of fact, violate the Eighth and Fourteenth Amendments to the United States Constitution.

The petition raises none of the issues that were considered by this court in People v. Anderson (1972) 6 Cal.3d 628, 100 Cal.Rptr. 152, 493 [18 Cal.3d 426] P.2d 880, related to whether capital punishment violates article I, section 17, of the California Constitution. Nor, since the claim is limited to an assertion that the California statutory procedures for determining who shall suffer death as a penalty for murder do not meet the constitutional criteria established by the United States Supreme Court, do we have before us the question of whether capital punishment is cruel and unusual Per se.

For reasons that we shall explain below, we conclude that the statutes in question permit imposition of the death penalty in violation of the Eighth and Fourteenth Amendments, and that the writ should therefore issue.

Petitioner was charged by information with the murder of Linda Beth Coverly. The charging allegations asserted that the homicide was committed with malice; was wilful, deliberate, and premeditated; and occurred in the perpetration or attempted perpetration of rape. It was further alleged that 'special circumstances' enumerated in section 190.2, subdivisions (b)(2), (b)(3)(ii), and (b)(3)(iii) were present. ² A jury found petitioner guilty of first degree murder. ³ The jury was dismissed and a mistrial declared as to the special circumstances phase of the trial, however, when the jury was unable to agree on the special circumstances allegations. Petitioner contends that he should not be required to undergo a retrial of the special circumstances charges inasmuch as the United States Supreme Court has held that death penalty statutes which do not provide for consideration of mitigating circumstances in the decision to impose capital punishment violate the Eighth and Fourteenth Amendments. (Gregg v. Georgia (1976) --- U.S. ---, 96 S.Ct. 2909, 49 L.Ed.2d 859; Proffitt v. Florida (1976) --- U.S. ---, 96 S.Ct. 2960, 49 L.Ed.2d 913; Jurek v. Texas (1976) --- U.S. ---, 96 S.Ct. 2950, 49 L.Ed.2d 929; Woodson v. North Carolina (1976) --- U.S. ---, 96 S.Ct. 2978, 49 L.Ed.2d 944; Roberts v. Louisiana (1976) --- U.S. ---, 96 S.Ct. 3001, 49 L.Ed.2d 974.) He argues that the California procedures set out in sections 190 through 190.3 are substantially identical in this respect to those of North Carolina and Louisiana which the court struck down in Woodson and Roberts, supra.

Preliminarily, we reject the People's suggestion that this petition is premature because petitioner would have a remedy by appeal should the special circumstances allegations be found true after trial. By issuance of the alternative writ we have determined that appeal is not an adequate remedy. Prohibition lies to restrain a court from acting in excess of its jurisdiction. (Safer v. Superior Court (1975) 15 Cal.3d 230, 242, 124 Cal.Rptr. 174, 540 P.2d 14; Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 290--291, 109 P.2d 942.) Trial pursuant to an unconstitutional statute may therefore be restrained by prohibition. (Dillon v. Municipal Court (1971) 4 Cal.3d 860, 866 fn. 6, 94 Cal.Rptr. 777, 484 P.2d 945; Parr v. Municipal Court (1971) 3 Cal.3d 861, 92 Cal.Rptr. 153, 479 P.2d 353.)

The People recognize that under the United States Supreme Court's decisions in Gregg v. Georgia, supra, --- U.S. ---, 96 S.Ct. 2909 and the companion cases decided the same day, statutes providing for imposition of the death penalty may neither make that penalty mandatory nor give the jury or judge charged with determining the penalty absolute discretion in the choice of life or death, but must provide standards so that the sentencing authority will 'focus on the particularized circumstances of the crime and the defendant.' (Gregg v. Georgia, supra, --- U.S. ---, 96 S.Ct. 2909.) A statute which enumerates aggravating circumstances, one or more of which must be found as a prerequisite to imposition of the death penalty but which does not provide for 'meaningful opportunity for consideration of mitigating factors presented by the circumstances of the particular crime or by the attributes of the individual offender' (Roberts v. Louisiana, supra, --- U.S. ---, 96 S.Ct. 3001, 3006) permits the imposition of capital punishment in violation of the Eighth Amendment's proscription of cruel and unusual punishment, as does a statute which makes death a mandatory punishment for specified categories of murder. (Woodson v. North Carolina, supra, --- U.S. ---, 96 S.Ct. 2978.) '(I)n capital cases the fundamental respect for humanity underlying the Eighth Amendment . . . requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.' (Id., at p. ---, 96 S.Ct. at p. 2991.)

Section 190 specifies that '(e)very person guilty of murder in the first degree Shall suffer death if any one or more of the special circumstances enumerated in Section 190.2 have been charged and found to be true in the manner provided in Section 190.1.' (Emphasis added.) Section 190.1 specifies that '(i)f the trier of fact finds . . . that any one or more of the special circumstances enumerated in Section 190.2 as charged is true, The defendant shall suffer the penalty of death . . ..' (Emphasis added.) And section 190.2 further specifies that '(t)he penalty for a person found guilty of first-degree murder Shall be death in any case in which the trier of fact' makes a finding that one or more charged special circumstances exist. (Emphasis added.)

The People do not claim that the 'special circumstances' enumerated in section 190.2 are other than aggravating factors creating categories of first degree murder for which death is the prescribed penalty. It is urged, however, that notwithstanding the Legislature's repeated stipulation that death 'shall' be the penalty for murders thus categorized, capital punishment is not, in fact, mandatory because both the trial judge and the appellate court have power to reduce the penalty from death to life imprisonment. This power, it is argued, makes possible consideration of mitigating factors in the circumstances of the offense and in the character and record of the individual defendant as required by the Eighth Amendment.

The People find this power in sections 1181, subdivision 7 ⁴ and 1385. ⁵ The former had been held to allow a trial court to reduce to life imprisonment a death penalty decreed by a jury under capital punishment provisions in effect prior to the enactment of sections 190.1 and 190.2 in 1973. (People v. Moore (1960) 53 Cal.2d 451, 454, 2 Cal.Rptr. 6, 348 P.2d 584, cert. den. 364 U.S. 895, 81 S.Ct. 226, 5 L.Ed.2d 189.) The latter, it is suggested, permits a trial court to strike special circumstances allegations 'in the interest of justice,' and thus to exercise mercy based on mitigating circumstances.

In order to determine whether the powers granted to trial and appellate courts by sections 1181, subdivision 7, and 1385 are sufficiently broad to meet the Eighth Amendment criteria for imposition of capital punishment, it is first necessary to examine those statutory schemes recently found constitutionally acceptable by the Supreme Court, and to compare them with those deemed unacceptable by that court.

Gregg v. Georgia, supra, --- U.S. ---, 96 S.Ct. 2909, is the leading case in which the court set forth its views both as to the constitutionality of capital punishment in general, and the features of the Georgia statutory procedures which offered assurance that the decision to inflict the death penalty in particular cases would be made and affirmed on the basis of criteria adequate to avoid arbitrary, capricious or discriminatory (and thus unconstitutional) decisions. Only two members of the court, Justices Brennan and Marshall, were of the view that the death penalty is excessive and thus...