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Court of Appeal, Fourth District, Division 3, California.

Thomas Francis EDWARDS, Petitioner, v. The SUPERIOR COURT of Orange County, Respondent, The PEOPLE of the State of California, Real Party in Interest.

Civ. 30639.

Decided: July 09, 1984

Ronald Y. Butler, Public Defender, Frank Scanlon and Michael P. Giannini, Asst. Public Defenders, James Dean Allen and William J. Kopeny, Deputy Public Defenders, for petitioner. No appearance for respondent. Cecil Hicks, Dist. Atty., Michael R. Capizzi, Asst. Dist. Atty., William W. Bedsworth and John D. Conley, Deputy Dist. Attys., for real party in interest.


Thomas Francis Edwards, a convicted defendant in a pending death penalty case, petitions this court to compel the Orange County Superior Court to vacate its orders denying his motion to enter a sentence of life imprisonment without possibility of parole, and permitting amendment of the prosecution's notice of aggravating evidence to be introduced at the penalty phase of his trial.   We issued an alternative writ of prohibition restraining respondent court from conducting a new trial of the penalty phase pending our resolution of the issues raised by the petition.

We now remand the cause to the trial court for the exercise of its discretion to determine whether a basis exists for sentencing petitioner to life imprisonment without possibility of parole;  additionally, we issue a peremptory writ of mandate directing the lower court to vacate its order allowing amendment of the prosecution's notice of aggravating evidence.


Following a jury trial, petitioner was convicted of murder (Pen. Code, § 187) 1 and attempted murder (§§ 664, 187).   Additionally, the jury found true the alleged special circumstance of intentional killing while lying in wait (§ 190.2, subd. (a)(15)).2  However, the jury was unable to determine by unanimous decision whether petitioner's penalty should be death or life imprisonment without possibility of parole.   Consequently, the trial court dismissed the jury in accordance with section 190.4, subdivision (b).3

Petitioner then moved the trial court to enter a sentence of life without possibility of parole, arguing under section 1385,4 as interpreted in People v. Williams (1981) 30 Cal.3d 470, 179 Cal.Rptr. 443, 637 P.2d 1029, the court was empowered with discretion to impose this alternative sentence if it found death would be a disproportionate penalty and would constitute “cruel and unusual punishment” (U.S. Const., 8th Amend.;  Cal. Const., art. I, § 6) under the circumstances of this case.   In support, petitioner cited a Kentucky Supreme Court opinion, Smith v. Commonwealth (1982) 634 S.W.2d 411, which held the trial judge had properly relieved the jury from considering the death penalty in the trial of the “nontriggerman” where the “triggerman” had already pleaded guilty and received the minimum 20 years sentence, since the lower court found imposition of the death penalty upon the less culpable party would otherwise be unconstitutionally “disproportionate.”   The court reasoned to hold a penalty hearing under the circumstances would constitute “an exercise in futility.”  (Id., at pp. 413–414.)

Petitioner additionally argued the court could enter the alternative sentence of life without possibility of parole under the provisions of section 190.4, subdivision (e), which allow the trial judge to modify a death penalty sentence if it is “contrary to law or the evidence presented.”5

The trial court denied petitioner's motion, stating subsection (b) of section 190.4 (see fn. 3 ante ) specifically mandates the impaneling of a new jury in cases where the first jury is deadlocked on the penalty issue.   Further, in accordance with the statute's own terms, the court is not authorized to exercise sentencing discretion under section 1385 or any other provision of law until the second penalty jury finds itself likewise deadlocked.   The court also ruled application of section 190.4, subsection (e)'s modification provisions was premature since its provisions come into play only after a death determination has been made by a jury and none had been made in this case.

 We are asked to determine whether the trial court has discretion, notwithstanding the mandatory provisions of section 190.4, subdivision (b) to sentence a defendant to life imprisonment without possibility of parole where it finds imposition of the death sentence would otherwise be unconstitutionally disproportionate.

Our Supreme Court in People v. Williams, supra, 30 Cal.3d 470, 179 Cal.Rptr. 443, 637 P.2d 1029, held the trial court had authority, under section 1385, to strike a special circumstance finding in order to make a defendant eligible for parole at the time of sentencing.   In so holding, the court examined prior case law dealing with the scope of section 1385 and pointed out the trial court has inherent power to adjudicate guilt of the substantive crime before it and to determine the facts necessary to increase or decrease punishment.  (Williams, supra, 30 Cal.3d at p. 479, 179 Cal.Rptr. 443, 637 P.2d 1029, quoting from People v. Burke (1956) 47 Cal.2d 45, 52, 301 P.2d 241.)   The court also noted section 1385 “permits dismissals in the interest of justice in any situation where the Legislature has not clearly evidenced a contrary intent.”  (Id., 30 Cal.3d at p. 482, 179 Cal.Rptr. 443, 637 P.2d 1029.)

After examining the relevant portions of the death penalty statute (§§ 190–190.5) and its legislative history, the court concluded no provision of the statute sought to limit the exercise of the trial court's power to dismiss allegations.   Thus, it held under normal rules of statutory interpretation section 1385 was applicable to a special circumstance finding.  (Id., at pp. 484–485, 179 Cal.Rptr. 443, 637 P.2d 1029.)

The People argue subdivision (b) of section 190.4, enacted by Initiative, expresses the intent to curtail a trial court's exercise of sentencing discretion regarding the adjudication of facts necessary to declare the constitutionality of imposing the death penalty under the circumstances of a particular case.   Subdivision (b) of section 190.4 specifically provides once the jury is unable to reach a verdict regarding penalty, it shall be dismissed by the court and a new jury shall be impaneled to try the penalty issue.  (See fn. 3, ante. )   This language does not, however, specifically provide the trial court is devoid of authority in a given case to determine whether or not the death sentencing option is constitutionally warranted.   Absent the explicit statutory prohibition, the trial court's inherent power to adjudicate the facts, if any, upon which death may be found “disproportionate” remains, and the court may enter the alternative sentence of life imprisonment without possibility of parole in the appropriate case without holding an otherwise unnecessary penalty phase trial.

We therefore conclude section 1385's sentencing discretion may be exercised to adjudicate the constitutionality of the death penalty as applied to a particular offense or offender before the impanelment of a new penalty jury is achieved.   Such exercise of the court's sentencing discretion is consonant with section 1385's policy of insuring “the penalty, treatment or disposition of the offender is tailored to the individual case.”  (Williams, supra, 30 Cal.3d at p. 482, 179 Cal.Rptr. 443, 637 P.2d 1029, quoting People v. Dorsey (1972) 28 Cal.App.3d 15, 18, 104 Cal.Rptr. 326, regarding the policies behind section 1385.)   Accordingly, on remand the trial court is directed to exercise its discretion as to whether a basis exists to bar imposition of the death penalty under the circumstances of this case.


Following mistrial of the first penalty phase trial, the prosecution moved to amend its original notice of aggravating evidence to be presented at the new penalty trial.   The evidence itemized on the original notice was excluded by the trial court on evidentiary and due process grounds.   Thus the prosecution was left with no evidence in aggravation to present during the first penalty trial except that already presented during the guilt phase.   The evidence itemized in the amended notice of aggravation included, among other items, a prior felony conviction, fourteen years in a mental institution, and evidence regarding petitioner's “long-standing rage against women and strong sexual attraction for their hair and for violence.”   This evidence was omitted from the original notice, although concededly known to the prosecution at the time of its filing.

Section 190.3 provides in relevant part:  “No evidence may be presented by the prosecution in aggravation unless notice of the evidence to be introduced has been given to the defendant within a reasonable period of time as determined by the court, prior to trial.”   The People argue “prior to trial” means before retrial of the penalty phase because it involves an entirely separate hearing before an entirely different jury.

Petitioner claims “prior to trial” should be strictly construed to mean prior to the entire trial, before both the guilt and penalty phases commence.   He relies on Keenan v. Superior Court (1981) 126 Cal.App.3d 576, 177 Cal.Rptr. 841, where defendant requested notice of the particular aggravating evidence intended to be introduced by the prosecution during the penalty phase of the trial before his case was assigned to a trial court.   The motion was denied without prejudice to renew it before the trial court.   A writ issued requiring notice of aggravating evidence be given within a reasonable period of time before trial commences, reasoning the legislative intent of section 190.3 was to allow death penalty defendants sufficient time to properly prepare for the trial's penalty phase.  (Id., at p. 587, 177 Cal.Rptr. 841.)

Here, the superior court noted the term “trial” was ambiguous and interpreted “prior to trial” broadly to mean prior to the trial of the penalty phase.   It concluded this was the only reasonable interpretation the statute could have under the circumstances of this case since otherwise the new jury would have to consider exactly the same evidence presented at the first penalty trial which had already resulted in a mistrial.   We agree the term “trial,” in the context of a death penalty case where the guilt determination is made separately from the penalty determination and where the issue of penalty may be subject to more than one trial, is ambiguous.   The unique facts which produce the issue before us were apparently unanticipated by the authors of section 190.3.   We face an anomalous situation, the resolution of which should not depend upon the voting public's intent in another context.   Until the issue is clearly addressed by the Legislature, we choose to apply a rule of reason which best serves the interests of all.

 We hold amendment to a notice of aggravating evidence may be allowed after the guilt phase has been completed but prior to commencement of the penalty phase provided good cause exists for the amendment and no prejudice to the defendant results.   Such a rule would accommodate the People and allow additional aggravation evidence when appropriate, while encouraging candor in the original notice and discouraging the listing of all possible evidence—which could disguise the prosecution's intentions and thus partially frustrate the purpose of the statute.   Were we to hold that the notice could never be amended after the guilt phase, the People would presumably list all available aggravation evidence.

The defense would then have to guess which evidence would actually be presented and which was listed out of an overabundance of caution.   The People should not be required to list evidence other than that which they then know of and intend to produce out of fear evidence will be precluded in a subsequent penalty phase they cannot anticipate.   Similarly the defendant should not have to prepare to counter evidence listed only as a precaution and not presently intended to be used and should not have his trial strategy skewed in the guilt phase by such evidence.

 Applying this test we find good cause exists for amendment to the notice of aggravating evidence.   The prosecution filed a good faith original notice which was rendered moot by the trial court's ruling on the admissibility of the evidence it listed and the subsequent mistrial, neither of which was anticipated.   However, our analysis does not end here.   We must next determine whether such amendment would prejudice the defendant.

Petitioner argues to allow the amendment would constitute a violation of due process.   He claims notice of the type of aggravating evidence the prosecution intends to introduce at the subsequent penalty hearing substantially affected tactical decisions made in the conduct of the defense during the guilt phase of the trial.   For example, petitioner claims the decision to refrain from testifying on his own behalf and from presenting a diminished capacity defense would have been different had the new aggravating evidence been noticed prior to the guilt phase of the trial.   Further, the choices previously made are now irrevocable and to allow amendment of the aggravating evidence notice at this stage in the proceedings is both fundamentally unfair and prejudicial to him.

We agree.   The prosecution originally elected to portray petitioner as a cold blooded sniper killer.   Now it desires to switch to present him as an ultra dangerous maniac after he has been convicted.   The amendment would obviously be prejudicial under these circumstances.

Thus we issue a peremptory writ of mandate directing the trial court to vacate its order allowing the prosecution to amend its notice of aggravating evidence.   The cause is otherwise remanded to the trial court with instructions to conduct further proceedings consistent with the views expressed in part I of this opinion.   The alternative writ is discharged.


1.   Unless otherwise indicated, all statutory references are to the Penal Code.

2.   Section 190.2 provides in relevant part:“(a) The penalty for a defendant found guilty of murder in the first degree shall be death or confinement in state prison for a term of life without the possibility of parole in any case in which one or more of the following special circumstances has been charged and specially found under section 190.4, to be true:“․“(15) The defendant intentionally killed the victim while lying in wait.”

3.   Subdivision (b) of section 190.4 provides as pertinent:“If the trier of fact is a jury and has been unable to reach a unanimous verdict as to what the penalty shall be, the court shall dismiss the jury and shall order a new jury impaneled to try the issue as to what the penalty shall be.   If such new jury is unable to reach a unanimous verdict as to what the penalty shall be, the court in its discretion shall either order a new jury or impose a punishment of confinement in state prison for a term of life without the possibility of parole.”

4.   Section 1385 provides in relevant part as follows:  “The judge ․ may ․ in furtherance of justice, order an action to be dismissed ․”

5.   Subdivision (e) of section 190.4 provides as pertinent:“(e) In every case in which the trier of fact has returned a verdict or finding imposing the death penalty, the defendant shall be deemed to have made an application for modification of such verdict or finding ․  In ruling on the application, the judge shall review the evidence, ․ and be guided by the aggravating and mitigating circumstances referred to in section 190.3, and shall make a determination as to whether the jury's findings and verdicts ․ are contrary to law or the evidence presented.   The judge shall state on the record the reasons for his findings.”

TROTTER, Presiding Justice.

WALLIN and CROSBY, JJ., concur.