Death Rule May Divide Liberals on High Court

A split over the death penalty may be emerging within the liberal majority on the California Supreme Court, with two justices expressing concern about a controversial precedent that has led to the reversals of 14 death sentences.

The so-called “intent” ruling, handed down in December, 1983, requires that prosecutors prove and jurors specifically find that a killing was intentional before the death sentence can be imposed.

The court had applied the precedent almost mechanically during the last two years, invoking it--often unanimously--to reverse 14 death sentences.

Many More Cases

No other ruling has led to so many reversals since capital punishment was reinstated in California in 1977, and prosecutors believe the ruling will be used to reverse many more death cases.

However, in opinions issued in the final two weeks of December, Justice Stanley Mosk, in dissent, broke from the liberal majority and voted to uphold five death sentences in which the appeal was based on the intent issue alone.

In all, while the court reversed 13 death sentences during that period, Mosk, in dissent, voted to uphold all but one of the judgments.

Justice Joseph R. Grodin voted to uphold the death sentence in one intent case, and two others, while writing separate opinions to express his concern about his votes to reverse death sentences in still other cases.

Before the year-end spate of death penalty cases, Grodin and Mosk had sided consistently with the four other liberals on the issue.

The possible shift by Grodin and Mosk comes only weeks after Justice Malcolm M. Lucas, the court’s one outright opponent of the intent ruling, urged the court to reject the 1983 precedent.

But while the conservative Lucas has not won converts to his position, his call, made in a November dissent, stirred Mosk and Grodin to respond for the first time publicly in opinions issued on New Year’s Eve.

Lucas’ Position ‘Appealing’

Grodin went so far as to call Lucas’ position in one of the intent-to-kill cases “appealing,” but he maintained that the state court’s intent ruling is compelled by U.S. Supreme Court precedent.

Yet Grodin also pointed out that the federal rulings are unclear, and he took the unusual step of calling on the U.S. Supreme Court to review California’s intent-to-kill cases.

“Perhaps the United States Supreme Court will (hear) this or another case and tell us we were wrong . . . but until it does, our obligation is to apply the law as we find it,” Grodin wrote. He noted that the state attorney general’s office had asked the U.S. high court to review one of the state court’s intent cases, but was turned down last year.

Mosk cast his five dissenting votes while maintaining that the intent-to-kill ruling remains good law.

“Even if one be disillusioned by the number of penalty reversals required by that decision . . . (precedent) and respect for the judicial process require adherence to decisions rendered so recently by a substantial majority of this court,” Mosk wrote, in response to Lucas.

Prosecutors remain doubtful that the court, which has reversed 52 of the 55 death sentences it has decided since capital punishment was reinstated, will change its position substantially.

But, referring to the votes by Mosk and Grodin, Edward A. O’Brien, in charge of death penalty appeals for the attorney general’s office, said, “I think there is a shift going on--somewhat.”

The possible shift by the two liberal justices was apparent in the case of Billy Ray Hamilton, who killed three people with a shotgun at point-blank range in a Fresno grocery store robbery. His death sentence, reversed on New Year’s Eve by a 4-3 vote, illustrates the controversy surrounding the intent-to-kill issue.

“From my review of the record,” Grodin wrote in a dissent joined by Mosk and Lucas, “it is inconceivable that any reasonable juror would have found (Hamilton) lacked intent to kill.”

Calling the evidence against Hamilton “overwhelming,” Grodin recounted the “methodical” way in which Hamilton stalked his victims and reloaded after each “deadly shot.”

The majority reversed the case, pointing out that the trial judge rejected a defense argument that intent to kill was an issue in the trial. Also, the prosecutor argued to jurors that they were not required to find that the murders were intentional. (When the opinion was issued, the court mistakenly indicated the vote was 6 to 1, but corrected the oversight on Thursday.)

In all, the Supreme Court reversed 11 death penalty cases on New Year’s Eve, including four that turned on the intent issue.

Mosk voted in dissent to uphold 10 of the 11 death penalty opinions issued on New Year’s Eve, Grodin would have upheld three, and Lucas voted to uphold all seven in which he sat.

Chief Justice Rose Elizabeth Bird, and Justices Allen Broussard, Cruz Reynoso and Otto Kaus, whose final day on the court was New Year’s Eve, voted to reverse all 11 death cases. Four of those cases were decided by one vote.

Seen as Key Vote

With Mosk and Grodin possibly moving in Lucas’ direction, the vote of Kaus’ replacement, Justice Edward A. Panelli, becomes more important. He could provide a fourth vote to uphold a death sentence, and he could provide the fourth vote needed to grant a prosecution request for a rehearing in any of the cases decided New Year’s Eve.

Panelli, appointed by Gov. George Deukmejian, an advocate of the death penalty, has said he will vote to uphold death cases, although he has not yet been confronted with a case presenting the intent-to-kill issue.

The intent issue grows out of an omission in the 1978 death penalty statute. Under the statute as written, jurors could impose death or life in prison without parole against a defendant who was convicted of committing a felony, such as a robbery, in which a murder occurred.

However, the statute did not require that prosecutors prove that the murder was intentional. The state Supreme Court ruled in December, 1983, that intent was required.

That decision was based on a U.S. Supreme Court ruling that a getaway car driver who did not pull the trigger in a robbery-murder could not be sentenced to death unless the driver intended that the killing take place. But the state court went further, requiring intent to kill by the actual murderer.

Pattern of Cases

Since that December, 1983, ruling, trial judges have routinely told jurors that they must find that a killing was intentional before they can impose death or life in prison without parole.

Yet dozens of cases were tried before the December, 1983, ruling, and the attorney general’s office has estimated that as many as 45 pre-1983 death cases may be reversed as a result of the intent-to-kill ruling.

Besides the reversal of Hamilton’s case on New Year’s Eve, the court reversed the sentences of a man who shot his victim in the hip and then drove off while the man pleaded for help and bled to death, and another man whose victim was discovered decapitated and with her hands hacked off.

The majority argued that, although it was unlikely, the slaying might have been accidental and the murderer could have mutilated the body afterward. There was no testimony to that effect during the trial, however.

In a dissent joined in part by Mosk and which Grodin called “appealing,” Lucas wrote:

“I suggest that the condition of (the victim’s) body amply established an intent to kill in the absence of any evidence in the record supporting the majority’s accidental death theory.

“We cannot reverse a judgment, even a death penalty judgment, based on nothing more than mere speculation or surmise.”