Justices Reverse Bird Court Rule on Intent to Kill

The new and more conservative California Supreme Court, overturning the most significant capital-punishment decision issued under former Chief Justice Rose Elizabeth Bird, ruled Tuesday that the death penalty can be imposed without a finding that the defendant intended to kill his victim.

The widely awaited ruling came less than a year after a bitter fall election campaign focusing on the old court’s death penalty record and the subsequent ouster by the voters of Bird and two other liberal justices.

The new court, now with a new majority of appointees of Gov. George Deukmejian, held in a 6-1 decision that juries need not specifically find intent to kill when the defendant kills in the commission of a felony, such as robbery, rape or burglary.

Reversed 1983 Decision

The justices, citing recent rulings by the U.S. Supreme Court, reversed a 1983 decision by the Bird court in the case of Carlos vs. Superior Court that had required an intent finding before the death penalty could be imposed in felony murder cases.

That ruling forced penalty retrials in 13 subsequent capital cases--and state prosecutors warned that death judgments in at least 29 other pending cases were likely to be reversed unless the 1983 ruling was overturned.

In Tuesday’s decision, the court also reversed a 1984 ruling in the case of People vs. Turner that had required a finding of intent to kill in cases involving multiple murders.

The new ruling will affect all future cases, as well as dozens of pending cases that had been tried before the Bird court rulings and in which juries had not been instructed that they must find intent to kill. Now, unless other issues raised on appeal require reversal, death judgments in those pending cases will be allowed to stand.

As a result, the way now is clear for the court in future decisions to uphold many more death sentences than it has in the past. Until now, the court had overturned 65 of the 70 cases it has reviewed since capital punishment was restored in 1977.

The ruling came as a substantial victory for state prosecutors, who had asked the new court to overturn the 1983 ruling, along with several other major criminal decisions by the Bird court.

State Atty. Gen. John K. Van de Kamp said the ruling resolves some of the “most important pending issues” in capital cases and will likely speed the pace of death penalty decisions by the court. At last count, 198 capital cases were awaiting review.

“I am hopeful that this means we may expect in the near future a large number of these cases to be decided,” he said. “In immediate practical terms, (the decision) is most important because it possibly breaks the decisional logjam” in capital cases.

Defense attorneys, while conceding that the ruling was not altogether unexpected, expressed disappointment that the court not only had opened the way for death judgments in unintentional killings but also had so quickly reversed a major precedent.

“The problem is, how long does the law remain the law?” asked Monica Knox, state chief assistant public defender.

On the other side, state Deputy Atty. Gen. Pete Wilkinson, the coordinator of death penalty cases for the attorney general’s office, said the court made a “principled decision” that the previous ruling was erroneous.

Wilkinson said that while it was “gratifying” to see the prosecutors’ arguments accepted by the court, Tuesday’s decision was still no indication that the court was ready to begin a “large-scale overruling” of Bird court precedents.

The 69-page majority opinion was written by Justice Stanley Mosk, an appointee of former Gov. Edmund G. (Pat) Brown and one of the justices who had voted with the majority in the 1983 ruling. Mosk’s opinion was joined by Justices Edward A. Panelli, John A. Arguelles and David N. Eagleson, all appointees of Deukmejian.

Chief Justice Malcolm M. Lucas, elevated by the governor to lead the court after Bird’s defeat, and Justice Marcus M. Kaufman, another Deukmejian appointee, concurred in separate opinions.

Justice Allen E. Broussard, an appointee of former Gov. Edmund G. Brown Jr., and author of the 1983 decision, issued a sharp dissent, warning that the death penalty theoretically now could be applied when a burglar startles a resident, who then dies of a heart attack, or when a robbery victim dies weeks later following complications from a minor injury he received during the crime.

“Sooner or later the present decision will result in an execution unjust to the defendant and unnecessary to protect any interest of the public,” he said.

Broussard pointedly suggested that the majority was yielding to partisan pressures and improperly abandoning the judicial tradition of following precedent to maintain stability and predictability in the law.

“Periodically, when the political winds gust in a new direction, it becomes necessary to remind all concerned of the virtues of a steady course,” Broussard said. While prior rulings are not “cast in stone,” he said, courts should not overturn a precedent simply because “changes in personnel” enable them to do so.

While the ruling Tuesday represented a clear triumph for prosecutors, some provisions of the decision favored capital defendants.

The court held that juries must still find intent to kill when the defendant merely aided or abetted in a felony murder but was not the actual killer.

And the justices voted to reverse the death verdict in the 1979 Riverside County murder case that was before the court on grounds the jury was told that if the defendant was sentenced to life in prison without parole--rather than death--the governor could still commute the sentence to life with the possibility of parole.

In this instance, the justices, rejecting pleas from state prosecutors, let stand another 1984 Bird court holding that such an instruction unfairly misled jurors by not also informing them that the governor can commute a sentence of death as well.

About 10 cases are likely to be affected by that part of the ruling, prosecutors said.

At issue in Tuesday’s ruling were major issues involving the 1978 death penalty law, an initiative passed overwhelmingly by the voters that expanded provisions of a 1977 capital punishment statute enacted by the Legislature.

In the 1983 ruling, the justices concluded that the 1978 law was ambiguous on whether intent to kill must be found in capital cases involving felony murder. Following the rule that ambiguities in the law should be interpreted in favor of defendants and seeking to avoid “serious constitutional problems” with the law, the court held that intent to kill must be found, basing its ruling largely on a 1982 decision by the U.S. Supreme Court that it interpreted as barring executions of unintentional killers as cruel and unusual punishment.

In 1984, the state court expanded the ruling to include multiple murder cases, saying intent to kill also must be found where the defendant is convicted of more than one murder.

The rulings had broad impact. According to studies by the state attorney general’s office, the clear majority of all capital cases involve felony murders and/or more than one murder by a defendant.

After the decisions, trial judges immediately began requiring juries to find intent to kill. Now, under Tuesday’s ruling, such instructions need not be given--and capital defendants may be sent to the gas chamber without a finding of intent to kill.

The case before the court involved James Phillip Anderson, convicted in the kidnaping, robbery and strangulation murders of Donna Coselman and Louise Flanagan in March, 1979.

The justices upheld Anderson’s conviction but ordered a retrial of the penalty phase of the case because of the instruction the jury received on the governor’s authority to commute sentences of life without parole.

But the court went on to reject Anderson’s claims that his sentence also should be reversed because the jury was not instructed to find intent to kill in what was both a felony murder and a multiple murder.

Mosk said that the 1983 ruling on intent in felony murders was reasonably based on the court’s understanding of a 1982 U.S. Supreme Court decision in effect at the time. Since then, however, subsequent decisions “made it plain that we had read (the 1982 ruling) more broadly than it had intended.”

In 1986, the high court said that constitutional requirements were met when the death penalty is imposed on someone who “in fact killed,” regardless of intent, Mosk noted. A 1987 U.S. Supreme Court ruling “made the point even more clearly,” indicating in a footnote that the California court had misinterpreted the 1982 ruling.

Based on the new high court rulings and their own reconsideration of the provisions of the 1978 law, the justices had concluded that they must overturn the 1983 ruling and require findings of intent to kill only where the defendant is an accomplice rather than the actual killer, Mosk said.

A similar analysis applied to cases involving multiple murders, he said.

In his 30-page dissent, Broussard said it was “disingenuous” for the majority to rely on the two recent U.S. Supreme Court decisions to justify its reversal of the 1983 state court ruling.

Even if the 1983 ruling was wrong, it should not be overruled, Broussard said. He noted that it was “rare” for the court to overrule a recent precedent interpreting a state statute. Further, he pointed out that since 1983, trial judges have been requiring a finding of intent to kill and that there has been “no complaint that such instructions have led to confusion, inefficiency, or brought about mistaken or unjust verdicts.”