Review Could Affect Death Penalty Appeals : Law: U.S. Supreme Court questions state’s use of criminal history.

In a case that could affect many prisoners facing execution, prosecutors said Wednesday they will ask the U.S. Supreme Court to withdraw its order requiring the state high court to reconsider part of California’s death-penalty law.

The federal high court on Monday set aside the death sentence of a Palo Alto man and ordered the California Supreme Court to re-examine a December ruling that allows juries weighing the death penalty to consider past violent criminal acts that did not result in conviction.

“This very often is one of the most significant factors for defendants with a long history of criminal behavior that, because of plea bargains or other reasons, was not charged,” said state Deputy Atty. Gen. Dane R. Gillette.

Monday’s U.S. Supreme Court order directed the state court to reconsider whether a section of the California death penalty law that allows juries to factor in past violent acts is vague and increases the risk that jurors might return a death recommendation based on bias.

The action marked the first time that the U.S. Supreme Court has cited its sentencing guidelines and told the state court to re-examine the constitutionality of any section of the 1978 California death-penalty law.

Gillette and San Francisco attorney Clifford Gardner, attorney for the defendant in the case, said that a number of pending death sentence appeals could be affected if the provision in state law is struck down.

The question arose in the case of Miguel Angel Bacigalupo, convicted of murdering two men in a robbery in 1983. At the penalty phase of the trial, prosecutors seeking the death penalty presented evidence of Bacigalupo’s participation in a 1978 robbery and shootout with police in New York.

Bacigalupo had pleaded guilty to robbery but his other actions in the incident--for which charges were dropped--also were offered as proof of past violent criminal activity.

State law allows jurors to consider such evidence among a list of “aggravating factors” in deciding whether to vote for the death penalty or life without parole. The absence of such activity can be weighed in the defendant’s favor.

Last December, the state high court unanimously upheld Bacigalupo’s death sentence, rejecting his claim that the provision allowing consideration of past violence was unconstitutionally vague.

Gardner appealed the ruling to the federal high court, contending that the wording of the provision failed to limit the jury’s attention to specific acts by the defendant.

“The problem (with vagueness) is that it can be used as a cover for consideration of improper factors, such as the race of the defendant,” he said Wednesday.

In support of the appeal, Gardner cited a March ruling by the federal high court invalidating a portion of a Mississippi death-penalty law on similar grounds. In Monday’s brief order, the justices directed the state court to reconsider the case in light of that March ruling.

Prosecutor Gillette said Wednesday that the state will contend that the sentencing laws in California are different from those in Mississippi and that the provision does not violate the U.S. Constitution. As an alternative, the state will propose that the federal high court review the issue to clarify the law, he said.

A decision by either court striking down the provision would not necessarily compel new penalty trials in all pending cases, Gillette said. That result would be determined by the details of such a ruling and circumstances of individual cases, he said.