People v. Malone

Appellant challenges his sentence of life imprisonment without possibility of parole alleging a violation of the tenets of Carlos v. Superior Court (1983) 35 Cal.3d 131 [ 197 Cal.Rptr. 79 , 672 P.2d 862 ] and People v. Dillon (1983) 34 Cal.3d 441 [ 194 Cal.Rptr. 390 , 668 P.2d 697 ]. Appellant, who was found to be neither the actual killer nor an intentional aider and abettor in the commission of murder in the first degree, both of which necessitate an intent to kill in order for special circumstances to be imposed under Carlos and its progeny, received a sentence of life imprisonment without the possibility of parole because he previously was convicted of murder which the trial court understood to require the imposition of a special circumstance under section 190.2, subdivision (a)(2), of the death penalty initiative.

Count I of the information charged appellant with murder and enumerated the following special circumstances: The murder was committed for financial gain (§ 190.2, subd. (a)(1)), appellant previously had been convicted of second degree murder (§ 190.2, subd. (a)(2)), and the murder was committed while appellant and his accomplice and brother, Cecil Howard, were engaged in the commission of robbery (§ 190.2, subd. (a)(17)(i)) and burglary (§ 190.2, subd. (a)(17)(vii)). The trial court rejected the alleged felony-murder “special circumstances” because of lack of evidence to support a finding that appellant intentionally aided and abetted his accomplice in the commission of murder in the first degree within the meaning of section 190.2, subdivision (b). However, the court in a separate proceeding (§ 190.1, subd. (b)) determined appellant had suffered a previous second degree murder conviction within the meaning of section 190.2, subdivision (a)(2). The court, finding no statutory impediment, proceeded to the penalty phase, determined the factors in mitigation outweighed those in aggravation and sentenced appellant to life imprisonment without possibility of parole.

II^[2]

questing, 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.” (Italics added.)

To support his interpretation of the statute, appellant cites Carlos v. Superior Court, supra, 35 Cal.3d 131 . The Supreme Court in Carlos concluded that the 1978 death penalty initiative (§ 190.2, subd. (a)) should be construed to require an intent to kill or to aid in a killing as an element of the felony-murder special circumstances. Although the requirement of an intent to kill was not listed in the felony-murder special circumstances included in subdivision (a)(17) of section 190.2,^[3] the court determined that subdivision (a) had to be read in conjunction with subdivision (b).

Under the 1977 law, felony murder was viewed as a special circumstance “only in the case of a defendant, physically present at the crime scene, who intentionally commits or aids a deliberate and premeditated murder.” (Carlos v. Superior Court, supra, 35 Cal.3d at p. 139; Stats. 1977, ch. 316, § 9, pp. 1257-1258.) Nothing in the voter pamphlet or summary of the Attorney General indicated that the requirement of intent would be deleted by the 1978 voter initiative.

In place of the provision of the 1977 law requiring physical presence and an intention to cause death “appears a new section (190.2, subd. (b)), of uncertain effect, but apparently designed to equate the liability of actual killers and their accomplices. This section, ... by its terms applies to all special circumstances except that of [a] previous murder conviction (§ 190.2, subd. (a), (2)), . . .” (Carlos v. Superior Court, supra, 35 Cal.3d at p. 140.) Appellant interprets the conspicuous absence of the subdivision (a)(2) enhancement from subdivision (b) to mean that the framers of the initiative intended to exclude nonkillers who have committed prior murders from the imposition of enhanced penalties under the 1978 death penalty law.

Respondent contends, however, that section 190.2, subdivision (b), is a jurisdictional prerequisite to proceeding from the guilt to the penalty phase

Respondent’s interpretation finds support in the genesis of the 1978 death penalty law. Former provision 190.2 included among those special circumstances necessitating an intent to kill for a perpetrator or an aider and abettor to be liable for first degree murder with attending special circumstances, the special circumstance involving a prior murder. Former section 190.2 stated: “The penalty for a defendant found guilty of murder in the first degree shall be death or confinement in the state prison for life without possibility of parole in any case in which one or more of the following special circumstances has been charged and, specially found, in a proceeding under Section 190.4, to be true:

“The defendant was personally present during the commission of the act or acts causing death, and with intent to cause death physically aided or committed such act or acts causing death and any of the following additional circumstances exists:

“(5) The defendant has in this proceeding been convicted of more than one offense of murder in the first or second degree, or has been convicted in a prior proceeding of the offense of murder of the first or second degree. ” (Stats. 1977, ch. 316, § 9, pp. 1257-1258.)

Because the new death penalty law was passed by voter initiative, we do not know that the framers of the law intended to exclude from the requirement of an intent to kill those accomplices to first degree murder with a prior murder conviction; however, the fact that subdivision (a)(2) was deleted from subdivision (b) might be indicative of such an intent.

The Legislative Analyst’s discussion contained in the voter pamphlet is not helpful in resolving the problem. The analysis there suggests the purpose of subdivision (b) was to govern the liability of accomplices; it states that

The fact that more than one individual has been unintentionally killed in a criminal transaction has not swayed the Supreme Court in its analysis of these constitutional questions. In People v. Turner (1984) 37 Cal.3d 302 , 328 [ 208 Cal.Rptr. 196 , 690 P.2d 669 ], the court concluded that two first degree felony murder convictions, “neither of which alone [could] justify imposition of the death penalty” because the deaths were both unintentional, could not “together open the door to a death penalty hearing.” (Id., at p. 328.)

An argument could be made that for equal protection purposes, criminal defendants convicted of felony murder and subsequently convicted of first degree felony murder, the murders being unintentional, are not similarly situated to those defendants convicted of more than one offense of felony murder in the same proceeding, neither killing being intentional, because of the policy of punishing a recidivist more severely. However, such an argument breaks down under scrutiny of recent decisions analyzing the interplay between the provisions of section 190.2, subdivision (a)(2), and (a)(3).

In Shamburger v. Superior Court (1984) 160 Cal.App.3d 484 [ 207 Cal.Rptr. 586 ], the court held that though the trial court is obligated to dismiss the special circumstances allegation that the defendant “has in this proceeding been convicted of more than one offense of murder in the first or second degree” under section 190.2, subdivision (a)(3),^[5] when the defendant successfully moves for severance of the two murder charges against him, “severance automatically confer[s] on the prosecutor the right to amend the information to charge the special circumstance that the defendant ‘was previously convicted of murder in the first degree or second degree.’ (Pen. Code, § 190.2, subd. (a)(2).)” (Id., at p. 485.)

In Shamburger, the defendant petitioned the Court of Appeal to order a dismissal of the special circumstances allegation after severance of the two murder charges had been granted because after severance for separate trials, the requirement that the murder convictions be sustained in the same “proceeding” as found in subdivision (a)(3) could not be met. The petitioner relied on the recent Supreme Court decision of Williams v. Superior Court (1984) 36 Cal.3d 441 [ 204 Cal.Rptr. 700 , 683 P.2d 699 ], In Williams, the

Under respondent’s interpretation of subdivision (a)(2), it would be more than wise for all criminal defendants faced with a charge of multiple murders in a single proceeding to refrain from moving for severance regardless

To force the above choice upon the criminal defendant creates an absurd result, is contrary to the Williams decision, and is a serious infringement upon due process rights.^[7] When there is ambiguity in the statutory language, as was stated in People v. Nunez (1984) 162 Cal.App.3d 280 [ 208 Cal.Rptr. 450 ], “ ‘It is the policy of this state to construe a penal statute as favorably to the defendant as its language and the circumstances of its application may reasonably permit; . . (Id., at p. 284, quoting Keeler v. Superior Court (1970) 2 Cal.3d 619 , 631 [ 87 Cal.Rptr. 481 , 470 P.2d 617 , 40 A.L.R.3d 420 ].)

Pursuant to the Carlos decision, the requirement of intent must be read into the statute to avoid the constitutional prohibition against cruel and unusual punishment. Because the trial court determined no such intent to kill or to aid in á killing existed in this case, the special circumstance finding as to appellant must be vacated; the punishment of life imprisonment without the possibility of parole may not be imposed.

The judgment as to guilt is affirmed; the finding of special circumstance is vacated and the case remanded for sentencing in accordance with the views expressed in this opinion.

Franson, Acting P. J., and Martin, J., concurred.