In The Supreme Court Of The State Of California
In the Supreme Court of the State of CaliforniaTHE PEOPLE OF THE STATE OFCALIFORNIA,Plaintiff and Respondent,CAPITAL CASECase No. S171393v.DONTE LAMONT McDANIEL,Defendant and Appellant.Los Angeles County Superior Court Case No. TA074274The Honorable Robert J. Perry, JudgeXAVIER BECERRAAttorney General of CaliforniaLANCE E. WINTERSChief Assistant Attorney GeneralJAMES WILLIAM BILDERBACK IISenior Assistant Attorney GeneralDANA M. ALISupervising Deputy Attorney GeneralJAIME L. FUSTERDeputy Attorney GeneralKATHY S. POMERANTZDeputy Attorney GeneralState Bar No. 239358300 South Spring Street, Suite 1702Los Angeles, CA 90013Telephone: (213) 269-6102Fax: (916) 731-2122Email: vAttorneys for Respondent1Document received by the CA Supreme Court.THIRD SUPPLEMENTAL RESPONDENT’S BRIEF
TABLE OF CONTENTSPageIntroduction. 11Argument. 12II.California law does not mandate the additionalpenalty-phase requirements McDaniel proposes . 12A.This court has repeatedly rejectedidentical challenges to California’s deathpenalty scheme . 12B.Neither section 1042 nor the CaliforniaConstitution requires proof of a penaltyverdict beyond a reasonable doubt. 19C.Neither section 1042 nor the CaliforniaConstitution requires proof beyond areasonable doubt or juror unanimity as toaggravating factors . 231.Proof beyond a reasonable doubt . 232.Unanimity . 26McDaniel was prejudiced by any failure toinstruct on proof beyond a reasonable doubt asto penalty but any error as to aggravatingfactors was harmless . 32A.Proof beyond a reasonable doubt as topenalty . 33B.Unanimity and proof beyond a reasonabledoubt as to aggravating factors . 351.Section 190.3, factor (a) evidence . 352.Section 190.3, factor (c) evidence . 383.Section 190.3, factor (b) evidence . 394.Any error was harmless. 42Conclusion . 432Document received by the CA Supreme Court.I.
TABLE OF AUTHORITIESPageCASESAllen v. Woodford(9th Cir. 2004) 395 F.3d 979. 17Andrews v. Shulsen(10th Cir. 1986) 802 F.2d 1256. 25California v. Ramos(1983) 463 U.S. 992 . 14Chapman v. California(1967) 386 U.S. 18 . 32Hedgpeth v. Pulido(2008) 555 U.S. 57 . 34In re Oluwa(1989) 207 Cal.App.3d. 439 . 23In re Winship(1970) 397 U.S. 358 . 19, 22Johnson v. State(Ark. 1992) 823 S.W.2d 800 . 25Lankford v. Idaho(1991) 500 U.S. 110 . 29McKinney v. Arizona(2020) 140 S.Ct. 702 . 32People v. Anderson(2018) 5 Cal.5th 372 . 133Document received by the CA Supreme Court.Capers v. California(2020) 206 L.Ed.2d 476 . 15
TABLE OF AUTHORITIES(continued)PagePeople v. Anzalone(2013) 56 Cal.4th 545 . 11, 30People v. Balderas(1985) 41 Cal.3d 144 . 20, 24People v. Brown(1985) 40 Cal.3d 512 . 15, 17, 34People v. Cage(2015) 62 Cal.4th 256 . 32People v. Cancino(1937) 10 Cal.2d 223 . 21People v. Capers(2019) 7 Cal.5th 989 . 15People v. Collins(1976) 17 Cal.3d 687 . 11, 26People v. Cooper(2002) 27 Cal.4th 38 . 23People v. Cowan(2010) 50 Cal.4th 401 . 32People v. Davis(2005) 36 Cal.4th 510 . 12, 15, 17, 28People v. Diedrich(1982) 31 Cal.3d 263 . 26People v. Duff(2014) 58 Cal.4th 527 . 154Document received by the CA Supreme Court.People v. Brown(1988) 46 Cal.3d 432 . 32, 35
TABLE OF AUTHORITIES(continued)PagePeople v. Duong(Aug. 10, 2020) 2020 WL 4580560 . 13People v. Frierson(1979) 25 Cal.3d 142 . 13, 14, 17People v. Gamache(2010) 48 Cal.4th 347 . 33, 35People v. Griffin(2004) 33 Cal.4th 536 . 13, 15, 28People v. Hall(1926) 199 Cal. 451 . 21People v. Hartsch(2010) 49 Cal.4th 472 . 12, 28People v. Hines(1997) 15 Cal.4th 997 . 27People v. Jackson(1980) 28 Cal.3d 264 . 17, 18People v. Johnson(2019) 8 Cal.5th 475 . 13People v. Jones(1990) 51 Cal.3d 294 . 26People v. Jones(2003) 29 Cal.4th 1229 . 32People v. Marshall(1990) 50 Cal.3d 907 . 295Document received by the CA Supreme Court.People v. Gordon(1990) 50 Cal.3d 1223 . 13, 23
TABLE OF AUTHORITIES(continued)PagePeople v. McClellan(1969) 71 Cal.2d 793 . 20People v. McDonald(1984) 37 Cal.3d 351 . 27People v. Mendoza(2000) 24 Cal.4th 130 . 15People v. Milan(1973) 9 Cal.3d 185 . 26People v. Miles(2020) 9 Cal.5th 513 . 13People v. Miranda(1987) 44 Cal.3d 57 . 27, 29People v. Morales(Aug. 10, 2020) 2020 WL 4580556 . 13People v. Polk(1965) 63 Cal.2d 443 . 20, 24People v. Prieto(2003) 30 Cal.4th 226 . 15People v. Reliford(2003) 29 Cal.4th 1007 . 27People v. Riccardi(2012) 54 Cal.4th 758 . 13People v. Robertson(1982) 33 Cal.3d 21 . 246Document received by the CA Supreme Court.People v. Mickle(1991) 54 Cal.3d 140 . 26
TABLE OF AUTHORITIES(continued)PagePeople v. Rodriguez(1986) 42 Cal.3d 730 . 13, 14, 17, 23People v. Russo(2001) 25 Cal.4th 1124 . 26People v. Stanworth(1969) 71 Cal.2d 820 . 24People v. Tafoya(2007) 42 Cal.4th 147 . 17People v. Terry(1964) 61 Cal.2d 137 . 24People v. Tully(2012) 54 Cal.4th 852 . 25People v. Vargas(July 13, 2020) 2020 WL 3956868 . 13, 26People v. Virgil(2011) 51 Cal.4th 1210 . 17, 33People v. Williams(1948) 32 Cal.2d 78 . 20, 21People v. Williams(2010) 49 Cal.4th 405 . 20, 24Pulley v. Harris(1984) 465 U. S. 37 . 14Ramos v. Louisiana(2020) 140 S.Ct. 1390 . 117Document received by the CA Supreme Court.People v. Suarez(Aug. 13, 2020) 2020 WL 4691517 . 13
TABLE OF AUTHORITIES(continued)PageState v. Rizzo(2003) 266 Conn. 171 . 22State v. Santiago(2015) 318 Conn 1 . 22State v. Wood(Utah 1982) 648 P.2d 71 . 22, 34Tuilaepa v. California(1994) 512 U.S. 967 . 29Zant v. Stephens(1983) 462 U.S. 862 . 14, 15STATUTESArk. Code Ann. § 5-4-603, subd. (a) . 22, 25, 31Ohio Rev. Code Ann. § 2929.03, subd. (B) . 25Penal Code § 190.1 . 15Penal Code § 190.3 . passimPenal Code § 190.3, subd. (a) . 24, 31Penal Code § 190.3, subds. (a)-(f) . 28Penal Code § 190.3, subd. (b) . 16, 24, 39Penal Code § 190.3, subds. (b) & (c) . 20, 31, 35Penal Code § 190.3, subd. (c) . 24, 38Penal Code § 190.4 . 308Document received by the CA Supreme Court.Sullivan v. Louisiana(1993) 508 U.S. 275 . 34
TABLE OF AUTHORITIES(continued)PagePenal Code § 190.4, subd. (a) . 19, 31Penal Code § 190.4, subd. (b) . 30Penal Code § 1041 . 16Penal Code § 1042 . passimPenal Code § 1096 . 19Stats. 1957, ch. 1968, § 2 . 16Tex. Code Crim. Proc. Ann. Article 37.071, § 2(b)-(c) . 31Utah Code Ann. § 76-3-202 . 25Utah Code Ann. § 76-3-207(3) . 25CONSTITUTIONAL PROVISIONSCal. Const., Article I, § 15 . 19Cal. Const., Article I, § 16 . passimU.S. Const. 6th Amend. . 28U.S. Const. 8th Amend. . 14, 28U.S. Const. 14th Amend. . 28OTHER AUTHORITIESCALJIC 2.50.01 . 27CALJIC 8.80.1 . 19CALJIC 8.86 . 359Document received by the CA Supreme Court.Stats. 1977, ch. 316, § 11 . 16
TABLE OF AUTHORITIES(continued)PageCALJIC 8.87 . 35, 41CALJIC 8.88 . 17, 30Document received by the CA Supreme Court.Proposition 7 . 23, 2410
INTRODUCTIONArticle I, section 16 of the California Constitution states inpertinent part: “Trial by jury is an inviolate right and shall besecured to all” and that in “criminal actions in which a felony ischarged, the jury shall consist of 12 persons.” This right to a jurytrial includes, in criminal cases, the right to a unanimous juryverdict. (People v. Anzalone (2013) 56 Cal.4th 545, 551; People v.Collins (1976) 17 Cal.3d 687, 693; see Ramos v. Louisiana (2020)140 S.Ct. 1390, 1397.) Penal Code section 1042 provides, “Issuesof fact shall be tried in the manner provided in Article I, SectionOn June 17, 2020, this Court issued an order directing theState to file a supplemental brief responding to the followingquestions raised by appellant Donte McDaniel in his openingbrief at pages 196 through 207:Do Penal Code section 1042 and article I, section16 of the California Constitution require that the juryunanimously determine beyond a reasonable doubtfactually disputed aggravating evidence and theultimate penalty verdict? If so, was appellantprejudiced by the trial court’s failure to so instruct thejury?McDaniel acknowledges that this Court has repeatedly held thatthe rights to unanimity and proof beyond a reasonable doubt donot apply as he contends. Nevertheless, McDaniel argues thatthis Court should reconsider its prior precedent because it hasAll statutory references are to the Penal Code, unlessotherwise specified.111Document received by the CA Supreme Court.16 of the Constitution of this state.” 1
never previously considered section 1042 in its analysis. (AOB196-197.)The issues raised by McDaniel are important ones. Thepenalty-phase requirements that McDaniel favors could befeasible policy reforms for the voters to consider; indeed, a fewStates have adopted similar requirements. As this Court hasrepeatedly recognized, however, they are not required by state orfederal law. The Court should adhere to that legal position—onwhich the lower courts have relied for decades—and leave it tothe electorate to amend the death penalty law if they see fit.I.California law does not mandate the additionalpenalty-phase requirements McDaniel proposesA.This court has repeatedly rejected identicalchallenges to California’s death penaltyschemeOver the last four decades, this Court has repeatedlyrejected all of McDaniel’s claims on constitutional grounds:There is no requirement in the federal or the stateConstitution that [1] the jury reach a unanimousagreement with respect to the factors in aggravation,[2] that jurors find the factors in aggravation to be truebeyond a reasonable doubt, [3] that the jury find beyonda reasonable doubt that the circumstances inaggravation outweigh those in mitigation beforeimposing the death penalty, or that the jury find beyonda reasonable doubt that death is the appropriatepunishment.(People v. Hartsch (2010) 49 Cal.4th 472, 515 (internal citationsand quotations omitted); see People v. Davis (2005) 36 Cal.4th12Document received by the CA Supreme Court.ARGUMENT
510, 572; People v. Gordon (1990) 50 Cal.3d 1223, 1273-1274;People v. Frierson (1979) 25 Cal.3d 142, 172-188.) This Court hasalso specifically held that article I, section 16 does not require aunanimous jury finding as to any aggravating factor underlyingthe death verdict. (People v. Griffin (2004) 33 Cal.4th 536, 598,disapproved on another ground by People v. Riccardi (2012) 54Cal.4th 758.) And the Court has reaffirmed those holdings in itsmost recent decisions. (See People v. Suarez (Aug. 13, 2020) 2020WL 4691517, *41-42; People v. Duong (Aug. 10, 2020) 2020 WL4580560, *22; People v. Morales (Aug. 10, 2020) 2020 WL4580556, *22; People v. Vargas (July 13, 2020) 2020 WL 3956868,People v. Johnson (2019) 8 Cal.5th 475, 527; People v. Anderson(2018) 5 Cal.5th 372, 425.)Both this Court and the Supreme Court of the United Stateshave so held because California’s death penalty scheme hasfeatures that provide constitutionally adequate safeguardsagainst arbitrary death judgments: 1) defendants are eligible forthe death penalty only once a jury has determined beyond areasonable doubt both that they are guilty of first degree murderand that at least one special-circumstance allegation is true;2) section 190.3 specifies the criteria that the sentencer shouldevaluate in selecting the penalty; and 3) there is independentreview of each death judgment by both the trial judge and onautomatic appeal. (People v. Rodriguez (1986) 42 Cal.3d 730,777-778.) In addition, because California’s death penalty statutesuitably narrows the class of death-eligible persons, and provides13Document received by the CA Supreme Court.*27; People v. Miles (2020) 9 Cal.5th 513, 2020 WL 2761063, *56;
for an individualized penalty determination at the sentencingand appeal stages, it “avoids the Eighth Amendment proscriptionof ‘arbitrary’ sentencing procedures.” (Id. at p. 778, citing Pulleyv. Harris (1984) 465 U.S. 37, 53-54, California v. Ramos (1983)463 U.S. 992, 1008, and Zant v. Stephens (1983) 462 U.S. 862,876-880.)This Court accordingly rejected the requirements suggestedby McDaniel based on the constitutional protections alreadypresent in the death penalty statute. (Rodriguez, supra, 42Cal.3d at pp. 777-779.) Using the same reasoning, this Courtreached the same conclusion as to the 1977 death penalty statutenoted the 1978 law “would not contravene the EighthAmendment even if it set no standards for the sentencing ofdefendants already deemed death-eligible.” (Rodriguez, supra, 42Cal.3d at p. 778.) The common thread through all of this Court’sopinions upholding the constitutionality of California’s deathpenalty statute is that because of the foregoing features, jurorsare permitted to exercise discretion in making theirdetermination whether death is appropriate.In exercising that discretion, this Court has long recognizedthat a jury’s determination of the appropriate penalty does notequate to traditional factfinding. Rather, “at the penalty phase,the choice between death and life imprisonment withoutpossibility of parole depends on a determination as to which ofthe two penalties is appropriate, which in turn depends on adetermination whether the evidence in aggravation substantially14Document received by the CA Supreme Court.in Frierson, supra, 25 Cal.3d at p. 172-188. This Court also aptly
outweighs that in mitigation.” (Griffin, supra, 33 Cal.4th at p.595.) Those determinations “do not entail the finding of factsthat can increase the punishment for murder of the first degreebeyond the maximum otherwise prescribed.” (Ibid.; People v.Duff (2014) 58 Cal.4th 527, 569.) Instead, they “constitute asingle fundamentally normative assessment” of the a
In the Supreme Court of the State of California THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, v. DONTE LAMONT McDANIEL, Defendant and Appellant. . Louisiana (2020) 140 S.Ct. 1390. 11 . Document received by the CA Supreme Court. TABLE OF AUTHORITIES (continued) Page . 8 . State v. .
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