Justices Rule on Death Penalty Discretion : Courts: Juries have wide latitude in determining whether convicted killers should die or be imprisoned for life, state high court says. Action is a response to a U.S. Supreme Court order.

The California Supreme Court held Tuesday that a jury has wide-ranging discretion to consider various factors in determining whether a convicted killer should be sentenced to death or life without parole.

The court issued its ruling in a case the U.S. Supreme Court had ordered it to re-examine as part of California’s death penalty law. Specifically, the high court wanted the state justices to determine whether the California death law is too vague.

On Monday, the U.S. court indicated that it continued to be troubled by the question when it agreed to review two other California cases on grounds of vagueness. In those cases, the high court will examine whether California jurors are given enough guidance in choosing between a death sentence and life without parole.

But the California court said that strict standards that prohibit vagueness under the Constitution apply only when a jury determines whether a killer is eligible for the death penalty. In California, this occurs during the “guilt phase” of a trial. A killer is found eligible for execution if various special circumstances are found, including the presence of multiple killings.

“In this respect,” wrote Justice Joyce Kennard, writing for the majority, “California’s capital scheme is unique.”

Kennard said the same standards do not apply during the sentencing phase of a capital case, when juries are asked to consider various factors, including prior criminal history and age, in weighing whether to sentence the killer to death or life without parole.

Clifford Gardner, an attorney for convicted killer Miguel Angel Bacigalupo, had argued that one of the factors the jurors considered in the sentencing phase of Bacigalupo’s trial--previous “criminal violence”--was impermissibly vague under the 8th Amendment. The court disagreed.

“The California court held that a jury has unbridled discretion in determining whether someone lives or dies after they are death eligible,” Gardner said after reading the state court’s decision. “After they are death eligible, all bets are off.”

The state’s high court noted, however, that there are limits to what factors the jury can consider in sentencing.

For instance, the court said, the factors weighed in sentencing should not be random or biased in favor of the death penalty, or include consideration of such irrelevant issues as race or religious beliefs.

Justice Edward Panelli, in a separate opinion, agreed with the majority but criticized it for creating a “new 8th Amendment vagueness standard” in ruling that irrelevant sentencing factors are impermissible. He said California’s sentencing factors are not vague, and no new standard is needed.

Deputy Assistant Atty. Gen. Dane Gillette said the majority opinion will help the state in defending its death penalty law before the U.S. court because the California justices clearly distinguished the eligibility phase from the sentencing portion of a capital trial.

But Gardner predicted that the state court’s decision “won’t be around for long” because of the U.S. Supreme Court’s interest in the issues.

He said the notion that the 8th Amendment does not apply to the penalty phase of capital cases is “so far-fetched that it may actually help the defendants” win in the U.S. Supreme Court.

If the state court had ruled for Bacigalupo, it would have cast doubts over other death sentences. Gardner said the justices would have been forced to re-examine them to determine whether the factors jurors considered in sentencing were too vague.

“This is a political decision, not a legal one as far as I can tell,” he said.

Justice Stanley Mosk, in a separate opinion, agreed that Bacigalupo’s conviction and death sentence should be upheld, but he said that vagueness standards apply to the factors weighed in the sentencing phase of death cases as well as in determining death eligibility.

“For reasons I cannot fathom,” Mosk wrote of his colleagues, “they flout the authority of the United States Supreme Court. . . . The high court has been quick to intervene when lower courts have been recalcitrant.”