PEOPLE v. RIVERA (1985)

In a prior opinion filed October 12, 1984, we affirmed a judgment of conviction based on a jury verdict finding defendant guilty of, inter alia, first degree murder with special circumstances.   Defendant admitted, prior to trial, having suffered a prior conviction of second degree murder.¹  Defendant was sentenced to life without possibility of parole.

Subsequently the Supreme Court, by order dated January 17, 1985, granted a hearing and then retransferred the matter to this court for “reconsideration in light of People v. Turner (1984) 37 Cal.3d 302 [208 Cal.Rptr. 196, 690 P.2d 669].”

The most significant issue in People v. Turner, and the only issue in that case which is germane to the case at bench, is that of the proof of special circumstances.   We thus interpret the order of retransfer as approval of our previous disposition of defendant's other claims of error, two in number, and thus we do not intend to reconsider them here.   Suffice to say at this juncture those other contentions have been considered and found lacking in merit.

Defendant's conviction of first degree murder was predicated on overwhelming evidence that during the course of robbing the victim of a small amount of money on the public street, defendant knocked the victim down and repeatedly beat the victim's head against the sidewalk, killing him.   The jury was instructed on the felony-murder rule and their verdict was based on that rule.   The jury was also instructed that a killing in the perpetration of a robbery constituted a special circumstance under Penal Code section 190.2(a)(17).²  The jury was not instructed that in order to find the existence of the special circumstance, it must find that defendant intended to kill the victim.

While defendant's appeal was pending, the Supreme Court filed its opinion in Carlos v. Superior Court (1983) 35 Cal.3d 131, 197 Cal.Rptr. 79, 672 P.2d 862, holding, for reasons which we will discuss infra, that a felony-murder special circumstance finding under subdivision (a)(17) ³ required an intentional killing.

In our previous opinion we observed that under Carlos the felony-murder special circumstance finding here could not stand.   In spite of the strong evidence of defendant's intent to kill the issue was a jury question, and ordinarily the judgment in that regard would have to be vacated and the matter remanded for a retrial on the issue of defendant's intent.

We nevertheless affirmed the judgment on the basis that defendant's prior murder conviction itself constituted a special circumstance under subdivision (a)(2) which provides that a defendant found guilty of murder in the first degree shall suffer death or life without possibility of parole if “The defendant was previously convicted of murder in the first degree or second degree․”

It was our considered opinion that Carlos was simply inapplicable to subdivision (a)(2).   Subsequently the Supreme Court filed its opinion in People v. Turner, supra.   In that case defendant was found guilty of first degree murder for the killing of two persons during the commission of a burglary.   The jury also found the existence of felony-murder special circumstance under subdivision (a)(17) and multiple murders under subdivision (a)(3).⁴

The court in this situation applied Carlos to the felony-murder special circumstance and also to the multiple murder special circumstance reasoning that multiple felony-murders could not substitute for the intent to kill required in a single felony-murder.

In both Carlos and Turner, the court discerned from the language of subdivision (b) an intent on the part of the voters in adopting Proposition 7 to require that a person, whether the killer or an aider and abetter, harbor an intent to kill before being subject to capital punishment under the provisions of subdivision (a)(3) or (a)(17).

Subdivision (b) provides in pertinent part:  “Every person whether or not the actual killer found guilty of intentionally aiding, abetting, counseling, commanding, inducing, soliciting, requesting, or assisting any actor in the commission of murder in the first degree shall suffer 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 special circumstances enumerated in paragraphs (1), (3), (4), (5), (6), (7), (8), (9), (10), (11), (12), (13), (14), (15), (16), (17), (18), or (19) of subdivision (a) of this section has been charged and specially found under Section 190.4 to be true.”

It is to be noted, however, that by its very terms subdivision (b) is specifically declared to be inapplicable to subdivision (a)(2).   To that extent then the rationale of Carlos or Turner is inapposite to the case at bench.

What then is the significance of the failure to list subdivision (a)(2) in subdivision (b) thus making it the only special circumstance to which subdivision (b) does not apply?

The Supreme Court conceded in Carlos that subdivision (b) was primarily intended to declare that persons other than the actual killer could be convicted of a capital offense for intentionally aiding and abetting the killer.   Subdivision (a)(2) unequivocally and unambiguously declares that a person previously convicted of murder shall be subject to the death penalty or life without possibility of parole upon conviction of any first degree murder whether or not that latter murder meets the definition of a special circumstance.

If subdivision (b) were made applicable to subdivision (a)(2) then a person previously convicted of murder would be subject to the death penalty or life without possibility of parole for aiding and abetting when the actual killer might not be subject to that punishment.   It is our opinion that in order to avoid that result subdivision (a)(2) was designed as a special circumstance to apply only to the actual killer.   It is our further opinion that subdivision (b) cannot be interpreted as engrafting on subdivision (a)(2) a requirement of intent to kill or as limiting in any way that type of first degree murder required for its application.

If a previously convicted murderer is subsequently convicted of an “ordinary” premeditated first degree murder under Penal Code section 189, the conviction would necessarily carry with it a finding of an intent to kill.   Of course if defendant commits a murder which would qualify as a special circumstance under any of the other provisions of subdivision (a), as modified by the holding in Carlos and Turner, the fact that he had previously been convicted of murder would be of no consequence.

The issue is thus narrowed to whether a sentence of death or life without possibility of parole can constitutionally be imposed on a person who commits a first degree murder as defined in Penal Code section 189,⁵ but without a specific intent to kill, because that person has previously been convicted of murder.

“A capital sentencing scheme must, in short, provide a ‘ “meaningingful basis for distinguishing the few cases in which [the penalty] is imposed from the many cases in which it is not.” ’ ”  (Godfrey v. Georgia (1980) 446 U.S. 420, at p. 427, 100 S.Ct. 1759, at p. 1764.)   The California Supreme Court characterizes the issue as one of requiring a “meaningful basis” for and a “principled way” of distinguishing capital from noncapital cases.  (Carlos, supra, 35 Cal.3d at 151–152, 197 Cal.Rptr. 79, 672 P.2d 862.)

What constitutes a “meaningful basis” or a “principled way” cannot be answered by reference to immutable law or precedent.   The resolution of the issue will necessarily depend upon the subjective attitudes and philosophies of the judges who make up the court in any particular case.   Since the decision we render in this case will perforce be applicable to cases involving the death penalty as well as those involving life without possibility of parole, it is highly unlikely that we will have the last word.   We can only express our views and opinions and hope that a majority of the Supreme Court shares our philosophy concerning the right of society to protect itself against the predators among us.

First we analyze the state of mind required for a conviction of the actual killer under Penal Code section 189.   A murder which is elevated to first degree murder because of the use of poison, torture, a destructive device or because of lying in wait in ambush, requires as a legal minimum an intent to inflict great bodily injury and as a practical minimum an unspeakable depravity.

A murder elevated to first degree because it was committed during the commission of certain particularly heinous felonies requires at a legal minimum an intent to commit one of those felonies and as a practical minimum an indifference to the possibility of death.

In our opinion, in dealing with these types of first degree murders, the dichotomy between intentional and unintentional killing has been overblown in that it has been made to appear that, absent a requirement of an intent to kill, an individual could be executed for an “accidental killing.”   In most if not all of these cases, however, the actual intent of the killer is the quantitative equivalent of an intent to kill.

The case at bench is factually rather typical whether the robbery involves the use of physical force or a weapon.   While it may be possible to contend that death was not absolutely intended, clearly the infliction of severe physical injury was.   Hence the death was no mere “accident,” and the use of the term “unintentional” killing does not equate with “accidental” killing.

Defendant here literally “beat the victim's brains out” in his quest for the few dollars which the victim had in his pocket.   Should it make any difference in assessing his culpability that defendant might only have intended to injure his victim rather than actually kill him.   We think not.

In Enmund v. Florida (1982) 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140, the United States Supreme Court reversed a death penalty imposed on a defendant who had aided and abetted a robbery in which two persons were killed.   The defendant was the driver of the getaway car and was not present at the actual killing.

There the high court concluded that one who neither kills nor intends his accomplice to kill cannot be subjected to the death penalty.   According to the majority, such penalty would be violative of the Eighth Amendment proscription against cruel and unusual punishment.

Since subdivision (a)(2) applies only to one who is the actual killer and we are not here dealing with vicarious liability, Enmund raises no constitutional bar to the application of subdivision (a)(2).

On the issue of “intent to kill” generally we think Justice O'Connor's comments are unassailable when she states at page 825, 102 S.Ct. at page 3391:  “Although the Court's opinion suggests that intent can be ascertained as if it were some historical fact, in fact it is a legal concept, not easily defined.   Thus, while proportionality requires a nexus between the punishment imposed and the defendant's blameworthiness, the Court fails to explain why the Eighth Amendment concept of proportionality requires rejection of standards of blameworthiness based on other levels of intent, such as, for example, the intent to commit an armed robbery coupled with the knowledge that armed robberies involve substantial risk of death or serious injury to other persons.   Moreover, the intent-to-kill requirement is crudely crafted;  it fails to take into account the complex picture of the defendant's knowledge of his accomplice's intent and whether he was armed, the defendant's contribution to the planning and success of the crime, and the defendant's actual participation during the commission of the crime.”

We thus conclude that a person who causes death under circumstances set forth in Penal Code section 189, albeit unintentionally, is a particularly vicious and culpable individual.   Nevertheless, our Supreme Court has concluded that unless the “intent to kill” is proved beyond a reasonable doubt the killing in the commission of a heinous felony cannot, of itself, constitute a special circumstance.

Notwithstanding that latter conclusion, the citizens of this state have clearly decreed that if such a person has already once been convicted of murder, that constitutes yet another type of special circumstance which warrants imposition of the death penalty or life without possibility of parole.

In our opinion that is a rational and meaningful basis for imposing the severest of punishment.   After all, how many murders must a person be allowed to commit before society is able to take necessary steps to insure that he won't commit another?

The judgment is affirmed.

I concur generally with my colleagues' reasoning and the ultimate conclusion they reach in this instance.   I write here only to note my disagreement with the proposition that Penal Code section 190.2, subdivision (b), excludes subdivision (a)(2) from its provisions in order to ensure that recidivist murderers should never be subjected to greater punishment than their accomplices unless, in their most recent homicide, they are the actual killers.  (Maj. opn., ante, p. 647.)   In my view, (a)(2) was omitted from (b) merely because the greater punishments traditionally imposed upon repeat offenders are not, and cannot rationally be, applied to others.

Long prior to the adoption of our complex indeterminate sentence law, with its many subsequent modifications effected by statute and initiative measure, a habitual criminal twice or thrice previously convicted as a principal of certain designated crimes was subject to life imprisonment even though he might have played a less prominent role than his companions in his most recent unsuccessful venture.  (See former Pen.Code, §§ 644, 3047, 3048.)

The appeal that now engages us presents neither a sentence of death nor an instance of aiding and abetting.   Consequently, under the “sufficient unto the day” rule, I leave for the future the resolution of the many questions potentially inherent in different scenarios.   I do but conclude that neither Enmund v. Florida (1982) 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140, nor People v. Turner (1984) 37 Cal.3d 302, 208 Cal.Rptr. 196, 690 P.2d 669, proscribes the present judgment.¹

FOOTNOTES

1.   During the penalty phase of the trial the People independently proved the prior conviction.

2.   Henceforth all statutory references are to Penal Code section 190.2, unless otherwise indicated.

3.   Penal Code section 190.2, subdivision (a) provides:  “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:  ․ (17) The murder was committed while the defendant was engaged in or was an accomplice in the commission of, attempted commission of, or the immediate flight after committing or attempting to commit the following felonies:  (i) Robbery in violation of Section 211.   (ii) Kidnapping in violation of Sections 207 and 209.  (iii) Rape in violation of Section 261.  (iv) Sodomy in violation of Section 286.  (v) The performance of a lewd or lascivious act upon person of a child under the age of 14 in violation of Section 288.  (vi) Oral copulation in violation of Section 288a.  (vii) Burglary in the first or second degree in violation of Section 460.  (viii) Arson in violation of Section 447.  (ix) Train wrecking in violation of Section 219.”  (Emphasis added.)

4.   Subdivision (3) creates the special circumstance where “The defendant has in this proceeding been convicted of more than one offense of murder in the first or second degree.”

5.   Penal Code section 189 provides in part:  “All murder which is perpetrated by means of a destructive device or explosive, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration of, or attempt to perpetrate, arson, rape, robbery, burglary, mayhem, or any act punishable under Section 288, is murder of the first degree;  and all other kinds of murders are of the second degree.”

1.   The probation department's “Evaluation” of this appellant was the following:“The defendant has a long history of violent behavior both in and out of prison.   He is a classic example of an individual who cannot function in society.   One wonders if he can even function in prison without strong restraints.   His present attitude is unchanged from 1973 when he was sentenced to state prison for murder and spent a total of three years in custody, and was released in 1976 as a ‘reformed’ and rehabilitated individual.   Six years later, he has killed again.   In this case, an apparently unarmed, highly intoxicated and helpless individual.   It would seem that the defendant could have robbed the victim easily without killing him.   Instead, he stabbed the victim many times, and bashed his head repeatedly on the concrete curb.   It would seem that the defendant may have taken perverse pleasure in the killing itself.“As the court will note, the previous murder in 1972 was equally gruesome.   He had stabbed a victim some 20 times.   The victim supposedly a ‘friend’ who had been drinking with the defendant.   He denied killing the victim in the prior matter and denies killing victim Felipe Vasquez in this matter.   His continual denial of guilt is even more chilling than a confession, since the defendant may feel justified in taking someone's life.   Certainly, he has no remorse for either killing and appears to be unfeeling concerning the victim.“The defendant has been sentenced to life in prison without benefit of parole.   Probation officer is unclear as to the defendant's future possibilities for release.   In five, ten, or fifteen years, perhaps the defendant will be seen as ‘rehabilitated’ once more.   One would hope not, since the defendant is seen as an exceedingly dangerous and hostile individual.”

COMPTON, Acting Presiding Justice.

BEACH, J., concurs.