Court to Review Death Penalty Expansion : Jurisprudence: Appeal to justices maintains that Proposition 115 is invalid because a little-noticed measure on the same ballot received more votes.

In a key test of Proposition 115, the state Supreme Court agreed Thursday to decide whether an expansion of the death penalty mandated under the sweeping criminal justice initiative was invalidated by another, little-noticed measure on the same ballot.

The justices announced they will review a ruling by a state appeals court striking down the capital-punishment provisions of Proposition 115 on grounds they conflicted with a far narrower change in the law enacted under Proposition 114, which received more votes in the June, 1990, election.

Thursday’s action came after state and local prosecutors urged the high court to overturn the appellate ruling. They argued that the two initiatives were complementary, not competitive, and that the lower court decision “thwarted the will” of an electorate that wanted both measures passed to strengthen the death penalty.

The case gives the high court a chance to clarify a pivotal November, 1990, ruling in another case. The court held then that when two initiatives are presented as “all or nothing” alternatives, or create a “comprehensive regulatory scheme” on one subject, only the measure with more votes can take effect.

Proposition 115, backed by then-U.S. Sen. Pete Wilson and law enforcement groups, was passed by a 57% majority vote. Among other things, the measure broadened the death penalty to permit executions for the murder of a witness in a juvenile proceeding; for accomplices who are major participants in felony-murders, and for killings during the commission of mayhem and rape by a foreign object.

Other provisions of Proposition 115 that did not affect the death penalty--such as those aimed at reducing delay in criminal proceedings--are not under challenge in the case.

Proposition 114, which drew far less attention during the campaign, expanded the categories of peace officers--including officers like Department of Corporations and Department of Motor Vehicles investigators--whose murderers would be subject to the death penalty. That measure was approved by a 71% majority.

Thursday’s action was welcomed by Orange County Chief Assistant Dist. Atty. John D. Conley, one of the prosecutors who sought high court review of the case. “We believe the two measures can be easily harmonized,” said Conley. “We can’t believe the voters had any inkling that somehow their approval of Prop. 114 conflicted with the other measure.”

Kevin J. Phillips, an Orange County deputy public defender challenging Proposition 115, expressed hope the high court will uphold the appeal court decision. “It’s pretty plain there is a conflict between the two initiatives,” Phillips said. “The Court of Appeal opinion was well-written and well-reasoned.”

In the case before the high court, Wayne Ichija Yoshisato of Huntington Beach was charged with murder in the July, 1990, fatal beating of his girlfriend’s 14-month old daughter. Authorities alleged that Yoshisato, 27, killed the child during the commission of rape by a foreign object, making him eligible under Proposition 115 for the death penalty or life in prison without parole.

Before trial, Yoshisato’s attorneys challenged the capital charges, contending that Proposition 115’s death-penalty expansion could not be implemented because of the passage of the narrower provisions of Proposition 114.

Orange County Superior Court Judge John J. Ryan rejected the claim, finding that neither initiative sought to create a “comprehensive regulatory scheme” for the death penalty and that thus there was no conflict.

But on Aug. 5, a state appeal panel in Santa Ana upheld Yoshisato’s contention. The two measures, each seeking to change the death penalty law, were in conflict--and Proposition 114, with more votes, must take precedence, the panel said.

In making only a minor change, Proposition 114 maintained existing law under which Yoshisato could face a maximum 25-year prison sentence, not the death penalty.

“None of Proposition 115’s proposed amendments (to the death penalty law) ever took effect,” declared Appellate Justice David G. Sills, joined by Justices Sheila Prell Sonenshine and Henry T. Moore Jr. “. . . All the lawyers and alchemists in the world cannot make a gold medalist out of a second-place finisher.”

In other action Thursday, the justices unanimously upheld the death sentence of Robert Henry Nicolaus, 58, for the murder of his former wife in Sacramento in 1985. Nicolaus previously had been sentenced to death for the 1964 murders of his three children, but the charge was reduced by the high court to second-degree murder and he ended up serving 13 years in prison before release on parole.