PEOPLE v. SUPERIOR COURT SANTA CLARA COUNTY (1980)

The People seek a determination that respondent court erred when, in two pending murder cases, it struck out of both informations special circumstance allegations which had been pleaded in order to subject the defendants to the death penalty or life imprisonment without possibility of parole.

The trial court held to be unconstitutionally vague the provision authorizing the death penalty or life without possibility of parole where “The murder was especially heinous, atrocious, or cruel, manifesting exceptional depravity, as utilized in this section, the phrase especially heinous, atrocious or cruel manifesting exceptional depravity means a conscienceless, or pitiless crime which is unnecessarily torturous to the victim.” (Pen.Code, s 190.2, subd. (a)(14).)

In the trial of a capital case a jury first decides whether the defendant is guilty of murder in the first degree. If the verdict is first degree murder the jury determines whether the offense was attended by one of several special circumstances specified by statute. (Pen.Code, s 190.2.) Some of these special circumstances are quite definite in nature. For example, a special circumstance would exist if the victim was a prosecutor killed in retaliation for performance of his official duties. (Pen.Code, s 190.2., subd. (a)(11).) If a charged special circumstance is found to be true, a penalty of death or life without possibility of parole is mandatory. Subsequently an evidentiary hearing is conducted to enable the jury to consider matters bearing on aggravation and mitigation. The choice of penalty, however, has already been restricted to two possibilities. The effect of mitigating circumstances is limited because mitigating factors are considered only after the jury has narrowed its options by finding the existence of a special circumstance. The judge may reject a jury-imposed death penalty only if he finds that it is “contrary to law or the evidence presented.” (Pen.Code, s 190.4., subd. (e).)

A penal statute violates due process requirements if it is so vague that a person of common intelligence must speculate as to its meaning. (Lanzetta v. New Jersey (1939) 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888.) When a statute is attacked for vagueness and uncertainty under the due process clause, there are two facets to the examination. “A statute must be definite enough to provide a standard of conduct for those whose activities are proscribed (notice) as well as a standard for the ascertainment of guilt by the courts called upon to apply it (guidance).” (People v. McCaughan (1957) 49 Cal.2d 409, 414, 317 P.2d 974, 977.) The language of section 190.2, subdivision (a) (14), does not provide adequate guidance to juries.

The jury must decide on life or death on the basis of a list of epithets which do not by their multiplication more precisely define conduct. As in the attempt to define “lewd or dissolute,” the addition of “pejorative adjectives” only heightens the uncertainty. The Supreme Court in Pryor v. Municipal Court (1979) 25 Cal.3d 238, 249, 158 Cal.Rptr. 330, 336, 599 P.2d 636, 642, explained:

“This impressive list of adjectives and phrases confers no clarity upon the terms ”lewd“ and ”dissolute“ in section 647, subdivision (a). Indeed, ”the very phrases and synonyms through which meaning is purportedly ascribed serve to obscure rather than to clarify those terms.“ (State v. Kueny (Iowa 1974) 215 N.W.2d 215, 217 (holding the phrase ”open and gross lewdness “ unconstitutionally vague).) To instruct the jury that a ”lewd or dissolute “ act is one which is morally ”loose,“ or ”lawless,“ or ”foul“ piles additional uncertainty upon the already vague words of the statute. In short, vague statutory language is not rendered more precise by defining it in terms of synonyms of equal or greater uncertainty.” (Emphasis added.)

Here, the words “cruel,” “atrocious” and “heinous” are explained by the use of terms of even more uncertainty, i. e., “conscienceless” and “pitiless.” Nor does the use of the word “especially” aid in clarification; it adds another area of uncertainty by requiring a jury to assess the level of cruelty in the “ordinary” first degree murder.

The provision also contains the puzzling term “unnecessarily torturous,” which the Attorney General interprets as meaning “the infliction of additional pain beyond that required to kill the victim” apparently placing on the jury the task of determining what amount of pain it would have “required” to kill the victim. Section 190.2 contains another special circumstance which provides for the additional penalty when “(t)he murder was intentional and involved the infliction of torture.” (Pen.Code, s 190.2, subd. (a)(18).) If the jury is instructed that torture means the same thing for both special circumstances, the jury must look to a “thesaurus” of “prjorative adjectives” (Pryor, supra, 25 Cal.3d at p. 248, 158 Cal.Rptr. 330, 599 P.2d 636) to distinguish between the two special circumstances. No commonly understood meaning attaches to the term “unnecessarily torturous” as distinguished from “the infliction of torture.” If the jury is unable to find “torture” within the meaning of subdivision (a)(18), then subdivision (a)(14) is an invitation to the jury to register a general feeling of revulsion toward a particular homicide defendant by finding the truth of that special circumstance. The section's vague language permits capricious and arbitrary application by a jury.

In holding unconstitutionally vague a special circumstance which allowed for the death penalty where a “ ‘. . . murder (is) committed by a person . . . who has a substantial history of serious assaultive criminal convictions,’ ” the Georgia Supreme Court stated: “Whenever a statute leaves too much room for personal whim and subjective decision-making without a readily ascertainable standard or minimal, objective guidelines for its application, it cannot withstand constitutional scrutiny. (Citations.) This doctrine has particular application to death penalty statutes after Furman v. Georgia ((1972) 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346), where, if anything is made clear, it is that a wide latitude of discretion in a jury as to whether or not to impose the death penalty is unconstitutional.” (Arnold v. State (1976) 236 Ga. 534, 224 S.E.2d 386, 391-392.)

The People argue that a similar provision in the Florida death penalty statutes was upheld by the United States Supreme Court in Proffitt v. Florida (1976) 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913. In the Florida capital-sentencing system, the jury could consider as aggravated a murder that was “ ‘especially heinous, atrocious, or cruel’ ” and the Supreme Court of Florida had construed the statutory process as directed only at “ ‘the conscienceless or pitiless crime which is unnecessarily torturous to the victim.’ ” (Proffitt v. Florida, supra, at p. 255, 96 S.Ct. at p. 2968, quoting from State v. Dixon (Fla.1973) 283 So.2d 1, 9.) The United States Supreme Court stated: “We cannot say that the provision, as so construed, provides inadequate guidance to those charged with the duty of recommending or imposing sentences in capital cases. See Gregg v. Georgia, ante, 428 U.S. at 200-203, 96 S.Ct. 2909 ( ).” (Id. at pp. 255-256, 96 S.Ct. at p. 2968.)

In Proffitt, however, the Supreme Court specifically noted: “As in Gregg, we examine the claims of vagueness and overbreadth in the statutory criteria only insofar as it is necessary to determine whether there is a substantial risk that the Florida capital-sentencing system, when viewed in its entirety, will result in the capricious or arbitrary imposition of the death penalty. See Gregg v. Georgia, ante, at 201 n. 51, 96 S.Ct. 2909 ( ).” (Id., at p. 254, fn. 11, 96 S.Ct. at 2967.) In Gregg, the court was considering the definition of murder as “outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim” when it noted that: “In light of the limited grant of certiorari . . . (w)e review the ‘vagueness' and ‘overbreadth’ of the statutory aggravating circumstances only to consider whether their imprecision renders this capital-sentencing system invalid under the Eighth and Fourteenth Amendments because it is incapable of imposing capital punishment other than by arbitrariness or caprice.” (Gregg v. Georgia (1976) 428 U.S. 153, 201, fn. 51, 96 S.Ct. 2909, 2938, 49 L.Ed.2d 859.) Thus the broader question whether the statutory language is too vague to comport with due process was expressly left open.

In Furman v. Georgia, supra, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346, the Supreme Court had held unconstitutional the death penalty provisions before it on the ground that they constituted “ ‘cruel and unusual’ ” punishments under the Eighth Amendment, applicable to the states under the Fourteenth Amendment. (Id., at p. 257, 92 S.Ct. at p. 2735.) The death penalties were considered cruel and unusual by the Furman court because the discretion conferred was “standardless.” The problem was not remedied by the mandatory statutes but “simply papered over.” (Woodson v. North Carolina (1976) 428 U.S. 280, 302, 96 S.Ct. 2978, 2990, 49 L.Ed.2d 944.) The court was still limiting its consideration to the Eighth Amendment argument. The question under consideration in the instant petition is whether the specific provision is so vague and uncertain that a conviction under its standard would constitute a denial of due process.

Not only does the issue before us raise a different constitutional question from that addressed in Proffitt, the provision under consideration here occupies a significantly different place in California's statutory scheme than it does in Florida's. In Florida, it is one of eight aggravating circumstances. The jury is not required to make a finding on the “especially heinous” factor: it is but one factor it is directed to consider. When the heinousness of a murder is one of several factors to be considered, there is less likelihood that the vagueness of the standard will affect the discretion of the finder of fact. In Florida, the jury is not required to choose the penalty in accordance with its finding that the crime was especially heinous. If a defendant is found guilty of a capital offense, an evidentiary hearing is held, after which the jury considers whether some of the seven statutory mitigating circumstances in combination outweigh the aggravating circumstances found to exist. The sentencing choice is between death and life imprisonment, which includes the possibility of parole. The jury's decision is only advisory; the actual sentence is determined by the trial judge. (See Proffitt v. Florida, supra, 428 U.S. at pp. 248-249, 96 S.Ct. at pp. 2964-2965.)

In upholding the aggravating circumstance, the Florida Supreme Court, in a case cited in Proffitt, noted the dangers of letting vague language be the guide for a jury, but upheld the “especially heinous” language because it felt that an experienced judge would be able to give the language some consistency of application. “To a layman, no capital crime might appear to be less than heinous, but a trial judge with experience in the facts of criminality possesses the requisite knowledge to balance the facts of the case against the standard (of) criminal activity which an only be developed by involvement with the trials of numerous defendants. Thus the inflamed emotions of jurors can no longer sentence a man to die; the sentence is viewed in light of judicial experience.” (State v. Dixon, supra, 283 So.2d at p. 8.) Georgia's statutory scheme is similar to Florida's; the basic difference is that the jury rather than the trial judge determines the sentence. In California, however, once the jury finds the crime “especially heinous,” it must fix the penalty as directed. It must come to grips with the language of the provision because it must make a finding on all charged special circumstances.

Considering the differing contexts in which the provision is found and the different issues before the courts, we conclude that the holding in Proffitt is of limited effect in considering the issue whether the “especially heinous” language in Penal Code section 190.2, subdivision (a)(14), is void for vagueness under the due process clause.

The holding in Furman centered on those defendants who were being condemned to death capriciously and arbitrarily. Here, that concern is extended to prohibit arbitrary and capricious imposition of either the death penalty or life in prison without the possibility of parole. The focus is not so much on the type of penalty imposed as it is on the manner in which it is imposed. In Proffitt the court held that Florida's similar statutory language provided adequate guidance to the jury during sentencing. However, the court viewed the language in the context of Florida's statutory scheme: as a sentencing factor, to be weighed against other factors in determining a sentence. In California this same language is not a sentencing factor; it is a special circumstance which, if found true, narrows the sentencing choices to two death or life without possibility of parole. In this context the vague language cannot withstand constitutional scrutiny.

It is concluded that the court acted properly when it struck the special circumstance specified in section 190.2, subdivision (a)(14).

The alternative writs are discharged and the petitions are denied.

I respectfully dissent.

Although I am impressed by the scholarship of my majority brethren in attempting to reconcile the United States Supreme Court opinions they cite, particularly Furman and Gregg, I am not convinced that subdivision 14 of Penal Code section 190.2(a) is vague, much less that it is unconstitutionally vague. That provision, which is part of an initiative measure approved by the voters in 1978, carries a strong presumption of constitutionality. It must be upheld unless its unconstitutionality “clearly, positively and unmistakably appears.” (In re Dennis M. (1969) 70 Cal.2d 444, 453, 75 Cal.Rptr. 1, 450 P.2d 296.)

The United States Supreme Court cases cited by the majority do not even touch on the due process attack that is involved here. Perhaps realizing this infirmity, the majority instead place considerable emphasis on the California Supreme Court's decision in Pryor v. Municipal Court (1979) 25 Cal.3d 238, 158 Cal.Rptr. 330, 599, P.2d 636. That reliance is puzzling. There it was held that “vague statutory language, resulting in inadequate notice of the reach and limits of the statutory proscription, poses a specially serious problem when the statute concerns speech, for uncertainty concerning its scope may then chill the exercise of protected First Amendment rights.” (Id. at p. 251, 158 Cal.Rptr. at p. 337, 599 P.2d at p. 643.) The court noted that a list of adjectives uncovered in case annotations to an obscenity statute did not render a vague vagrancy statute more precise. Such First Amendment concerns are not apposite to murder.

Due process commands that a penal statute must be definite enough to provide both a standard of conduct for those whose activities are proscribed and for the ascertainment of guilt. The statute involved here meets that standard. The notice given by the Penal Code is abundantly clear: do not commit murder in the first degree because if you do you may find yourself subject to death or lifetime behind bars if the killing is accompanied by one or more of the special circumstances set forth in Penal Code section 190.2. What is being forbidden is murder. Once a person decides to engage in that clearly defined activity it is difficult to believe that he or she has any real need, much less constitutional right, to the same sort of precision with respect to the nature of the “special circumstances” that will elevate that murder to one that can be so punished. Once a person decides to murder another his choice of methods is not within the ambit of protected activity. If the statutory description of the special circumstance is less than photo precise, it does not chill that murderer in the exercise of his First Amendment rights. Quite to the contrary, that alleged lack of specificity may serve a very real social good in helping to dissuade the potential killer from either committing the crime or committing it in a way that could be characterized as heinous, atrocious or cruel, manifesting exceptional depravity.

But even if the due process clause requires the same specificity in defining special circumstances as it requires in the definition of the crime itself, that demand has been met. Is there any doubt that a juror or a potential murderer can determine what is meant by “a conscienceless or pitiless crime which is unnecessarily torturous to the victim”? These terms define themselves. They have no different meaning in law than they have when used in ordinary conversation. The idea intended to be expressed by these words cannot be made more clear by any other judge-blessed words in the English language, except by an all inclusive listing of specific examples.

If such an enumeration is constitutionally required the majority opinion should say so because the Penal Code will require redrafting when this decision becomes final. Instead of the few lines of Penal Code section 190.2(a)(14)

(i. e., “The murder was especially heinous, atrocious, or cruel, manifesting exceptional depravity, as utilized in this section, the phrase especially heinous, atrocious or cruel manifesting exceptional depravity means a conscienceless, or pitiless crime which is unnecessarily torturous to the victim”)

we will have a new Penal Code section 190.2(a)(14). Doubtless it will resemble a compendium of methods gleaned from the activities of the Marquis de Sade. Then the person who is thinking of murdering can read through the descriptive listing. Murder by beheading might be mentioned and if it is, supposedly he could decline to carry out his crime in that manner. But if the drafters in a careless moment fail to mention murder by acid bathing then the potential murderer would not put himself or herself in jeopardy of either death or lifetime imprisonment if such a method is chosen. If this person then carries out this perversion there is no way under the majority holding that such a person could be put permanently beyond society.

There is some language in the majority opinion that can be read as admitting that the statutory definitions here provide an adequate standard of conduct to the person contemplating crime. That same language however, indicates that the statute is too vague to provide an adequate standard for the ascertainment of guilt by a jury. If that is what my colleagues mean I find it astonishing: the holding is that the statute provides each juror with a constitutionally precise enough standard by which to guide his conduct (in the event he is contemplating murder by torture) but does not provide that same person with enough in the way of definition to judge the conduct of another person. Apparently the criminals have been provided a non-vague standard but the finders of fact have not been, even though it is the same statute that is vague to one and precise to the other. Penal Code section 190.2, subdivision (a)(14) is, if I understand the majority analysis, a two-way mirror, unlike the looking glass in Alice in Wonderland. When the criminal looks at it he sees the precise definition of a crime but when the noncriminal, the juror, glances at the mirror it is terribly vague, maybe even constitutionally opaque.

It is true, as my colleagues point out, that another special circumstance not under review here (a)(18) requires only an intentional murder involving the “infliction of torture” whereas under (a)(14) what is necessary in the murder is a “pitiless crime which is unnecessarily torturous to the victim.” My colleagues suggest that a jury unable to find torture under (a)(18) will be invited by the higher standard of (a)(14) to be “capricious and arbitrary” and to register a general feeling of revulsion toward a particular homicide defendant. That is the equivalent of contending that a jury unable to find evidence of a lesser included offense will be “invited” by the very existence of the principal crime to vent their prejudice on a defendant so charged.

Each of these cases arises solely from the pleadings an information and a “demurrer/motion to strike.” Neither this court nor the trial court knows the details or even the outlines of the alleged killings. For all we know the defendants were each engaged in the most heinous activity that can be imagined by the demented. When the various trials are completed there is considerable review available ranging from motions for a new trial through automatic, nonwaivable appeal. I have no doubt that the rights of each defendant will be properly protected by such review. If the fear of the majority here is of a runaway jury, that fear should be calmed by knowledge of the innumerable procedural protections available to a defendant in a “special circumstances” case.

Because I harbor reasonable doubt that the unconstitutionality of Penal Code section 190.2(a)(14) “clearly, positively and unmistakably appears,” I would set aside the orders striking the special circumstances alleged in each of the informations.

CHRISTIAN, Associate Justice.

RATTIGAN, Acting P. J., concurs.