People v. Payne

Opinion

As a result of a homicide committed January 27, 1975, the defendant was convicted of first degree murder with a finding of special circumstances which led to a sentence of death. On January 18, 1977, following the decision in Rockwell v. Superior Court (1976) 18 Cal.3d 420 [ 134 Cal.Rptr. 650 , 556 P.2d 1101 ], the case was assigned to this court for disposition. On November 1, 1977, we filed our opinion (unpublished) modifying the judgment of conviction to impose a life sentence instead of the penalty of death on count one—murder, and to provide that the sentence on count two, aggravated rape, be suspended pending execution of sentence on count one, and then be permanently stayed. As so modified the judgment was affirmed.

They also assert that the provisions of the newly enacted legislation are merely a procedural change In the manner of determining the applicability of the death penalty which was authorized by the adoption of section 27 of article I of the state Constitution in 1972. (See People v. Ward (1958) 50 Cal.2d 702 , 706-711 [ 328 P.2d 777 , 76 A.L.R.2d 911 ] [cert. den. (1959) 359 U.S. 945 ( 3 L.Ed.2d 678 , 79 S.Ct. 730 ), overruled on other grounds People v. Morse (1964) 60 Cal.2d 631 , 649 ( 36 Cal.Rptr. 201 , 388 P.2d 33 , 12 A.L.R.3d 810 )] [application of provisions for separate penalty trial to offense committed prior to their adoption]; and People v. Snipe (1972) 25 Cal.App.3d 742 , 745-748 [ 102 Cal.Rptr. 6 , 60 A.L.R.3d 1316 ] [application of law extending from one year and a day to three years and a day, the period in which manslaughter could be found when death ultimately resulted from a prior act or omission, to acts and omissions which occurred prior to, but less than one year before, the statute was amended].) A further assertion is that the change in the law is a trivial matter which can be given retroactive application. (See People v. Sobiek (1973) 30 Cal.App.3d 458 , 472 [ 106 Cal.Rptr. 519 ] [cert. den. (1973) 414 U.S, 855 ( 38 L.Ed.2d 104 , 94 S.Ct. 155 )] [ruling that a partner may be guilty of grand theft].)

We are mindful of the following rule: “The courts have on numerous occasions declared that they will not grant rehearings on points newly urged in the petition. It is the duty of counsel to see that all points are properly presented in the original briefs or argument, before submission.” (6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, § 598, p. 4526. See City of Saratoga v. Huff (1972) 24 Cal.App.3d 978 , 1006 [ 101 Cal.Rptr. 32 , 102 Cal.Rptr. 376 ].) Nevertheless, we recognize that legislation adopted August 11, 1977, could not be appropriately called to the court’s attention prior to argument and submission in July 1977. A more serious question may be posed by this court’s power of review under the transfer from the Supreme Court (Cal. Const., art. VI, § 12). Section 11 of article VI of the California Constitution provides in pertinent part: “The Supreme Court has appellate jurisdiction when judgment of death has been pronounced.” (See People v. Shorts (1948) 32 Cal.2d 502 , 511 [ 197 P.2d 330 ].) At the time of the transfer it was apparent the death penalty was not involved. If we were to rule as requested by the People we would in effect be classifying this case as one in which the death penalty was an issue. It is arguable that in so doing we would be trespassing on the jurisdiction of the Supreme Court. Moreover, by the same- token, it appears that the People are seeking a rehearing of the Supreme Court’s order of transfer to this court, which impliedly held the penalty imposed on the defendant as unconstitutional. Since the Supreme Court may acquire jurisdiction upon petition for hearing, discretion dictates that we leave respondent to that remedy.

Lest the Supreme Court remand the matter for the sake of securing a further exposition of the merits of the question, we also add that in our opinion the People’s arguments are fallacious, sophistical, and specious, and will not bear the light of analysis. They concede that constitutional principles preclude retroactive application of a statute as

Here the new statute demonstrably inflicts greater punishment than could be inflicted under the former statute at the time the act was committed. The People’s argument is predicated on the theory that the statutes which provided for the death penalty in 1975 were valid. Such is not the case. (Rockwell v. Superior Court, supra, 18 Cal.3d 420 .) At the time of the adoption of the new statute the penalty for murder, aggravated as in this case, was not that nominally provided by the Legislature, but life imprisonment. The new statute did not purport to amend or patch up the old law; it adopted a new scheme of punishmént under the new, not the old, law. The defendant here may be punished under the old law by virtue of the provisions of section 9608 of the Government Code. (In re Estrada, supra, 63 Cal.2d 740 , 747-748.) Nevertheless, in proceeding under that law the prosecution is subject to all its constitutional infirmities. To impose a greater punishment would offend, not only the principles of section 3 of the Penal Code, but those delineated in In re Estrada.

As we have noted the procedural changes expressly relate to the new law not the former law which has been repealed. Therefore cases dealing with procedural changes are not pertinent. The change from life imprisonment to possibility of death is not trivial. Nor can we say that the Legislature by repealing all the old law intended to rectify its constitutional infirmities as in In re. Marriage of Bouquet. Moreover, in that case the court was able to justify the alleged divestiture of rights on grounds not available here.

We do not find comfort for the People in Dobbert v. Florida (1977) 432 U.S. 282 [ 53 L.Ed.2d 344 ; 97 S.Ct. 2290 ], The “fair warning” doctrine adopted by the majority of the court (432 U.S. at p. 297-298 [53 L.Ed.2d at pp. 358-359; and 97 S.Ct. at p. 2300]) is, as demonstrated in the dissenting opinion of Justice Stevens, an absurdity. If applied generally it would mean that whenever a criminal statute were declared unconstitutional it could be patched up and the offender ultimately punished. Nor can we accede to the proposition that a remand for trial of

In any event it cannot be applied to one such as the defendant who was tried and sentenced under the former law. The state provides an automatic appeal, but to condition that review on an opportunity to pass new legislation which would impose a new trial and a more severe penalty than could have been imposed at the time of the original judgment would place the defendant in double jeopardy in violation of the law of this state. “A defendant’s right of appeal from an erroneous judgment is unreasonably impaired when he is required to risk his life to invoke that right.” (People v. Henderson (1963) 60 Cal.2d 482 , 497 [ 35 Cal.Rptr. 77 , 386 P.2d 677 ], See also People v. Hood (1969) 1 Cal.3d 444 , 459 [ 82 Cal.Rptr. 618 , 462 P.2d 370 ]; In re Ferguson (1965) 233 Cal.App.2d 79 , 81-82 [ 43 Cal.Rptr. 325 ]; and North Carolina v. Pearce (1969) 395 U.S. 711 , 719-726 [ 23 L.Ed.2d 656 , 665-670, 89 S.Ct. 2072 ], Cf. Chaffin v. Stynchcombe (1973) 412 U.S. 17 , 35 [ 36 L.Ed.2d 714 , 728, 93 S.Ct. 1977 ]; and Stroud v. United States (1919) 251 U.S. 15 , 18 [ 64 L.Ed. 103 , 110, 40 S.Ct. 50 ]. Note, Bunnell v. Superior Court (1975) 13 Cal.3d 592 , 601 [ 119 Cal.Rptr. 302 , 531 P.2d 1086 ], recognizing that California will apply its own standard of double jeopardy.) It is true that the defendant at his first trial was ostensibly in jeopardy of suffering the death penalty, and outwardly it would not be subjecting him to a greater penalty to retry the issue of his punishment under more favorable circumstances. The fact remains, however, that it was unconstitutional to require him to stand trial for his life, and it was so determined by the