Today, there was a hearing scheduled on California Senate Bill 300, a bill to change the state’s “special circumstance” law in favor of the murderers, with an implication that it applies retroactively to overturn cases already properly tried. However, the “hearing” has been limited to people stating if they support or oppose, with no opportunity to give the reasons, making it pointless. So here is what I would have said.
In California, first-degree murder with “special circumstances” is punishable by death or life in prison without possibility of parole. The law is subject to the criticism that the special circumstances are not special enough, and I have proposed some pruning myself in the past. SB 300 would limit special-circumstance murder for accomplices to those who can be proved to have intended to kill. In 1990, Proposition 115 added a “reckless disregard of human life” alternative for accomplices convicted of first-degree murder under the felony murder rule, implementing an option allowed by the U.S. Supreme Court in Tison v. Arizona (1987).
Applied to future cases, that would not necessarily be a bad change. It would have virtually no effect on capital punishment, as today’s juries seldom-to-never impose the death penalty on accomplices without an intent to kill. The huge problem is imposing such a fact-finding requirement retroactively. This is not speculation. We have been there and done that. It was the key issue in the first capital case I ever briefed.
In September 1980, Billy Ray Hamilton entered Fran’s Market in Fresno with the dual purpose of robbing the store and killing witnesses to his gang boss’s prior murder. He shot four people with a shotgun, reloading between shots. Three died but one miraculously survived.
Intent to kill was abundantly clear from the circumstances, but the judge did not instruct the jury that it had to specifically find intent for the special circumstance to be true because the law at the time did not require such an instruction. However, between the trial and appeal, the California Supreme Court issued its notorious opinion in Carlos v. Superior Court (1983). That case involved an accomplice, and the court held that an intent to kill finding was required for accomplices who did not personally participate in killing the victim. That was a plausible reading of the accomplice provision of the statute at the time, but the court then went beyond the facts of the case and held that such an instruction was required for the actual killer as well. The next year, the court compounded the damage with a decision that reversal would be automatic, regardless of the facts of the case, in violation of the harmless error rule in the California Constitution. The damage was massive, as the “Bird Court” went romping through capital felony murder cases, overturning death sentences left and right. Hamilton’s was one of them.
The people of California ousted Bird and two other justices in the 1986 election, and the reconstituted Supreme Court granted rehearing in Hamilton’s case. CJLF filed a brief asking for Carlos to be overruled as to actual killers. The California Supreme Court did so in one of the other cases, People v. Anderson, 43 Cal. 3d 1104, 240 Cal. Rptr. 585, 742 P.2d 1306 (1987), tracking the reasoning of our brief in Hamilton.
With that experience in mind, we return to SB 300. When legislation reduces the punishment for a given offense, it has long been the rule in California that the change is presumed to apply retroactively to cases not yet final on appeal at the time the legislation takes effect. The rationale is that if the Legislature has decided that the existing punishment is too severe for a given crime, the courts can and should reduce the punishment in pending cases accordingly.
The logic of this rule is strained when it comes to procedural changes. The fact that the Legislature decides that a different procedure would be better does not necessarily mean that it has decided that all cases decided under the old procedure need to be retried. Yet last May in People v. Padilla, S263375, a narrowly divided California Supreme Court applied Proposition 57 retroactively to undo an earlier determination that an under-18 murderer should be tried in adult court rather than juvenile court. The majority’s expansive language in that opinion creates a strong possibility that this bill would be applied retroactively unless it says otherwise.
SB 300 does not expressly say whether it should apply to previously tried cases. That is legislative malpractice. This question is entirely under the control of the Legislature, and there is no excuse for punting it to the courts. A prospective-only bill would, on this point, be merely a return to pre-Prop. 115 law. A retroactive bill would cause massive damage, stripping victims’ families of the finality they were promised.
If the bill is retroactive, either the cases would have to be retried or the sentences would have to be reduced to life with parole. A sentence of life without parole for the murderer is a sentence of life for the victims’ families. It means repeatedly reliving the horror to oppose parole. It means worry if the murderer is released, that he might come after them in retribution. And all of this may happen in cases where it is clear that the murderer did intend to kill in reality, as in Hamilton, simply from the lack of a jury instruction that was not required at the time.
The other obnoxious feature of this bill is that it gives the trial judge the power to strike the special circumstance allegation merely because he disagrees with its application in a particular case. This introduces an element of arbitrariness in sentencing, where the sentence a murderer receives depends as much on which judge he draws as on his actual culpability. Proposition 115 got rid of that arbitrariness for good reason.
Because this bill amends Proposition 115, it requires a 2/3 vote in both houses to pass. I urge all Californians to write their representatives in both houses to vote no on this ill-considered piece of legislation.
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