Death Sentences Overturned for Two Brothers

The state Supreme Court on Thursday overturned the death sentences of two brothers for a double-murder in Los Angeles, finding the jury was improperly told the defendants might eventually win parole if they were not sentenced to die.

The court unanimously affirmed the convictions of Robert and Woodrow Warren for the murders of two men during a street robbery in 1979. But the justices said the sentences must be set aside under a 1984 ruling that invalidated a jury instruction on the governor’s commutation powers that was given at the time.

In the since-discarded instruction, jurors were told that if a defendant was sentenced to life without parole instead of death, the governor could reduce the sentence to life with the possibility of parole. Jurors were not told that the governor could also reduce a death sentence to permit parole.

The instruction, which was required under the 1978 capital punishment initiative, was first struck down by the court of then-Chief Justice Rose Elizabeth Bird in 1982 as violating the federal Constitution. But the U.S. Supreme Court held to the contrary and overturned that decision.

In 1984, the state court, this time relying on California law, invalidated the instruction again, finding it was misleading and unfairly encouraged jurors to vote for death to ensure against the eventual release of dangerous convicted killers.

The new court, under Chief Justice Malcolm M. Lucas, reaffirmed the 1984 ruling last year. But in another case last week, the court held that a death sentence could be upheld when the instruction was given if jurors were also told to disregard the governor’s commutation powers.

In Thursday’s decision, however, there were no such additional instructions and the court, in an opinion by Justice Stanley Mosk, ruled that the two brothers were entitled to new penalty trials.

“When a court charges the jury (with the instruction), it commits serious error and necessarily subjects the defendant to prejudice,” Mosk wrote.

State Deputy Atty. Gen. Thomas L. Willhite Jr. said the two death penalty reversals came as little surprise in view of other recent rulings reaffirming the invalidity of the instruction.

Willhite welcomed another part of Thursday’s decision that upheld the use of another jury instruction that had been challenged on grounds it failed to make clear accomplices in capital crimes must intend to kill before they can be sentenced to death.

“The ruling (Thursday) is significant because it could eliminate any problems of instructional error on aiding and abetting,” Willhite said. “This holding could save those cases.”

State Deputy Public Defender Michael Pescetta said that while he was disappointed the court upheld the Warrens’ convictions, “we are pleased the court reversed the death penalties as we thought it should do in light of the clear instructional error.”

Robert Warren, 30, and Woodrow Warren, 32, were charged with the murders of Homero Flores and Antonio Herrera in a robbery in the early morning hours of September 8, 1979, in South-Central Los Angeles.

According to evidence in the case, the Warrens and a never-identified third man approached Flores, Herrera and Angel Rebeles as they were gathered outside Rebeles’ home drinking beer and listening to a car radio.

At one point, the unidentified robber began to search Herrera as Robert Warren held a gun on the victims. When Herrera twisted side to side to protect his pockets, Robert Warren asked, “Can I shoot?” and Woodrow Warren replied, “Yes.” Robert Warren shot Herrera in the head and when Flores moved, he shot Flores in the side. Both men died from their wounds.

Mosk, in an opinion joined by Lucas and Justices Edward A. Panelli and David N. Eagleson, rejected Woodrow Warren’s claim that the trial judge erred in instructing the jury that to receive a death sentence an alleged accomplice must have “intentionally aided . . . the actual killer in the commission of murder in the first degree.”

Woodrow Warren said the instruction might be understood to mean intent to commit the robbery, not the murder. But Mosk concluded the instruction “would not be so construed by a reasonable juror” and upheld its validity.

In a concurring opinion, Justice John A. Arguelles, joined by Justice Allen E. Broussard, said there was “serious question” the instruction clearly informed the jury it must find Woodrow Warren intended to kill.

But, noting that Woodrow had answered affirmatively when Robert asked, “Can I shoot?” Arguelles said any such error did not affect this case. The evidence, he said, “clearly betrays Woodrow’s intention not merely to aid in the criminal enterprise but to kill as well.”

The court under Lucas has reversed eight of the 27 death sentences it has reviewed since the departure of Bird and two other justices defeated in the November, 1986, election. Under Bird, the court reversed 64 of 68 capital sentences.