Did the California Supreme Court err by upholding Sanders' death sentence despite the fact that it invalidated two of the four special circumstances used to determine the penalty in the lower court, and failed to reweigh the circumstance or determine whether the error was harmless beyond a reasonable doubt?
Ronald Lee Sanders was found guilty of murder and other charges related to a 1981 attack in Bakersfield, California. At the sentencing phase of his trial, the jury found that there were four “special circumstances” related to his crimes, and accordingly sentenced him to death. On appeal, the California Supreme Court invalidated two of the special circumstances, but upheld the death sentence without reweighing whether it was warranted by the remaining special circumstances. The California Supreme Court also failed to specifically find that the presence of the invalid circumstances was harmless beyond a reasonable doubt. After a series of unsuccessful appeals and petitions for habeas corpus, the Ninth Circuit granted habeas relief, holding that it was unconstitutional for the California Supreme Court to uphold the death sentence without reweighing the special circumstances or finding the error to be harmless. Petitioner, the state of California, argues that the state's sentencing code is not the type of “weighing” statute that would render a death sentence invalid simply because certain special circumstances were found to be invalid. The Supreme Court's decision in this case will significantly impact the prospects for successful appeals or writs for habeas corpus by defendants similarly situated to Sanders.
Questions as Framed for the Court by the Parties
- Is the California death penalty statute a “weighing statute” for which the state court is required to determine that the presence of an invalid special circumstance was harmless beyond a reasonable doubt as to the jury's determination of penalty?
- If an affirmative answer to the first question was dictated by precedent, was it necessary for the state supreme court to specifically use the phrases “harmless error” or “reasonable doubt” in determining that there was no “reasonable possibility” that the invalid special circumstance affected the jury's sentence selection?
At trial in the Superior Court of Kern County California, Ronald Lee Sanders was convicted of first-degree murder, attempted murder, robbery, attempted robbery, and burglary, all stemming from an attempted robbery in Bakersfield, California. See People v. Sanders, 797 P.2d 561, 566–67 (Cal. 1990). At the sentencing phase the jury found four special circumstances connected to the crime: the murder was committed during the commission of a robbery, the murder was committed during the commission of a burglary, the victim was intentionally murdered to prevent her from testifying in a criminal proceeding, and the murder was especially heinous, atrocious, and cruel. id. at 565. In accordance with California criminal procedural law, the jury took these special circumstances into account in sentencing Sanders to death. See Cal. Penal Code § 190.2 (1978).
On appeal, the California Supreme Court set aside two of the special circumstance findings. First, the court found that the jury's finding that the murder was committed during the commission of a burglary could not be used as a special circumstance because “the jury instructions improperly permitted the jury to find a burglary based on defendant's intent to commit an assault.” See People v. Sanders, 797 P.2d 561, 587 (Cal. 1990). Second, the finding that the murder was especially heinous, atrocious, and cruel was set aside because these terms were found to be unconstitutionally vague. id. At 589. Nonetheless the Court upheld the convictions and the death sentence. Id at 596. Sanders' subsequent writs for habeas corpus were rejected by the California Supreme Court and the United States District Court for the Eastern District of California. See In re Sanders, 1999 Cal. LEXIS 6112 (Cal. 1999); Sanders v. Woodford, 373 F.3d 1054 (9th Cir. 2004).
The United States Court of Appeals for the Ninth Circuit upheld the district court's denial of relief with respect to Sanders' guilt, but reversed the California Supreme Court's decision regarding the death sentence. See Woodford, 373 F.3d at 1056. The court found that California was a “weighing” state—meaning that the jury must consider specific aggravating and mitigating special circumstances in the sentencing phase of criminal trials. See Id. at 1062. After invalidating two of the special circumstances, the California Supreme Court was therefore required to reweigh the remaining factors, conduct a proper harmless error analysis, or remand for resentencing. See Id. at 1064. The court held that these failures rendered the death sentence in this case unconstitutional under the Eighth Amendment and remanded the case to the district court with instructions to grant the habeas petition unless the state granted a new trial for the penalty phase or imposed a lesser and appropriate sentence. See Id. at 1068.
Death Sentence: A Two Step Process
Sentencing an individual to death in the state of California is a two-step process involving an eligibility phase, outlined in California Penal Code § 190.2, and an individualized sentencing phase, outlined in California Penal Code § 190.3. The first step is the eligibility phase, which requires jurors to determine whether the offense committed falls within a class of “death-eligible crimes.” See Petition for Writ of Certiorari to the 9th Circuit, January 11, 2005, No. 04-980 at 4. California Penal Code § 190.2 includes a list of “special circumstances” to guide jurors in making this decision. For a crime to be death-eligible, jurors must make a factual determination that the crime involves at least one special circumstance that makes its commission particularly “death-worthy.” See Sanders v. Woodford, 373 F.3d 1054, 1061 (9th Cir. 2004); Brief Amicus Curiae of the Criminal Justice Legal Foundation in Support of Petitioner at 9–10 [hereinafter CJLF Brief]. At Sanders' second trial, jurors used four special circumstances to conclude that Sanders' crime was death-eligible: murder committed during a robbery, murder committed during a burglary, murder committed to prevent testimony, and murder describable as heinous, atrocious, and cruel. See Woodford, 373 F.3d at 1062; Cal. Penal Code § 190.2(a)(17)(A), (a)(17)(G), (a)(10), and (a)(14) (1978).
After a crime has been categorized as death-eligible, the sentencing phase calls for jurors to use eleven mitigating and aggravating factors outlined in California Penal Code § 190.3 to make an individualized decision about whether a defendant will receive a life sentence or the death penalty. See Woodford, 373 F.3d at 1061; CJLF Brief at 9. Although the statute does not individually designate the factors as “aggravating” or “mitigating,” Sanders interprets case law to show that factors (a) through (c) are aggravating factors while (d) through (k) are mitigating. See Brief for Respondent at 8. He contends that the plain language of the Penal Code expressly calls for a balancing of the mitigating and aggravating factors outlined in the code. See Id. He points out that the statute states on its face that, “If the trier of fact determines that the mitigating circumstances outweigh the aggravating circumstances the trier of fact shall impose a sentence of confinement in state prison for a term of life without the possibility of parole.” Cal. Penal Code § 190.3.
Fixing 8th Amendment Error in a Weighing vs. Non-Weighing Jurisdiction
Whether the Court affirms the Ninth Circuit's decision turns on its interpretation of whether the California Penal Code designates California as a weighing or non-weighing state. In a weighing state, jurors use the same aggravating factors for determining death-eligibility and making the individualized decision about whether to impose a death sentence. See Petitioner's Brief on the Merits at 8. However, the jurors are limited to using specific, itemized aggravating factors and cannot look to general circumstances. See Id. at 9 (citing People v. Boyd, 700 P.2d 782, 790-91 (Cal. 1985)). In contrast, the hallmark of non-weighing states is that separate factors are used in the eligibility and sentencing phases. See Id. at 12. Under a non-weighing regime any error in the eligibility phase is thus unlikely to significantly prejudice the defendant's ultimate sentence (so long as the defendant is still determined to be death-eligible). See Id. at 6. Jurors in non-weighing states are not restricted by a list of aggravating factors, but are permitted to generally consider all relevant mitigating and aggravating circumstances. See CJLF Brief at 27.
Sanders argues that when California amended its 1977 death penalty statute in 1978, it shifted California from a non-weighing state to a weighing state. See Brief for Respondent at 10. California's 1977 death penalty statute granted Californian jurors considerable leeway in sentencing a defendant to death. See Id. At 9. Jurors were instructed to consider aggravating and mitigating circumstances in the sentencing phase. See Id. However, jurors received no additional instructions about the relative importance of these mitigating and aggravating factors, and there is general consensus that the 1977 statute was a non-weighing statute. See Id. at 10. In 1978, however, California passed a new death penalty statute that offered Californian jurors more guidance, specifically requiring jurors to balance aggravating and mitigating factors. See Id. Sanders argues that this change turned California into a weighing state. See Id. Sanders points to the plain language of the statute, which requires an outweighing of mitigating factors by aggravating factors to impose a death sentence. See Id. at 14. As a weighing state, Sanders maintains that California should use a federal standard of review to correct erroneous balancing of aggravating and mitigating factors. See Id. at 10. The federal standard requires finding that there was “harmless error beyond a reasonable doubt.” Id.
Whether or not California is a weighing state is central to this case because it bears directly on what importance should be given to California Supreme Court's dismissal of two of the four special circumstances. This is because one of the aggravating factors outlined in California Penal Code § 190.3(a), [hereinafter Factor (a)], calls for jurors to look at the “[t]he circumstances of the crime of which the defendant was convicted in the present proceeding and the existence of any special circumstances found to be true pursuant to Section 190.1.” If California is a weighing state, Factor (a) thus incorporates aggravating factors from the eligibility phase into the sentencing phase. See Brief for Respondent at 8. In Sanders case, this would mean that his chances of receiving a death sentence were significantly increased because the same invalid, aggravating factors were being used twice. See Id. In other words, Sanders argues that because the jurors conducted their individualized sentencing using two invalid aggravating circumstances at both the eligibility and sentencing phases, he was denied the discretionary, individualized sentencing guaranteed under the Eighth Amendment. See Id.
The State argues that California is not a weighing state, and even if it is, its use of a different standard of review was sufficient to determine that Sanders was not prejudiced. See Petitioner's Brief on the Merits at 10. The State contends that California's status as a non-weighing state is supported by the Penal Code's failure to delineate individual factors as aggravating or mitigating, as well as its inclusion in 190.3(a) of “circumstances of a crime” and “special circumstances.” See Id. at 17. The State insists that a true weighing state provides limited, specific aggravating factors in its code in order to ensure the least amount of randomness in the aggravation calculation. See Id. at 15, 18-19. Unlike a weighing state, however, California has completely separate eligibility and sentencing factors. See Sanders v. Woodford, 373 F.3d 1054, 1062 (9th Cir. 2004). Contrary to Sanders' suggestion, the State maintains that the inclusion of “special [aggravating] circumstances” in both 190.2 and 190.3(a) is not suggestive of a weighing statute because Factor (a) asks jurors to also focus on the general circumstances of the crime. See Petitioner's Brief on the Merits at 18. If Factor (a) had not asked jurors to consider general circumstances in addition to the aggravating factors, then the California statute would have the hallmark of a weighing statute—i.e., consistent use of aggravating factors at both the eligibility and sentencing phases. See Id. at 17, n8.
To fix the kind of Eighth Amendment error that results from balancing invalid, aggravating factors, an appellate judge must either conduct an independent reweighing of the factors, excluding the invalid, aggravating circumstances, or remand to the trial court for resentencing. See Sanders v. Woodford, 373 F.3d 1054, 1061 (9th Cir. 2004). Sanders argues that only if the balancing of the invalid, aggravating special circumstances was “harmless error beyond a reasonable doubt” should the prior conviction will be affirmed. See Petitioner's Brief on the Merits at 16. The State asserts that the California Supreme Court has always employed a “reasonable possibility” standard of review, and that this standard is functionally equivalent to “harmless error beyond a reasonable doubt.” See Id. Moreover, the state finds it absurd that the Ninth Circuit found that there was a “substantial and injurious effect” on the case's outcome simply because the California federal standard was not used. See Id. at 32, n15. The State insists that there is no need for “talismanic incantation” of the federal review standard in order to fully assess whether an Eighth Amendment error occurred. See Id. at 30. It is now up to the Supreme Court to determine which standard of review will be applied to Eighth Amendment.
The Supreme Court's decision in this case stands to impact state prosecutors, inmates, judges, and future defendants. If the court finds that the California statute is a weighing statute, then prosecutors in California and other weighing states will have to press appellate judges to perform such analyses in order for their sentences to stand up on further review. Such a decision in favor of Sanders would also likely lead to motions from current inmates who have had their sentences upheld although aggravating circumstances were invalidated on appeal. Even if the volume of such potential motions would be insubstantial, any increase in proceedings will stress state and federal court systems already burdened by crowded dockets. See United States v. Ameline, 409 F.3d 1073, 1086 (9th Cir. 2005); Citi-Wide Preferred Couriers, Inc. v. Golden Eagle Ins. Corp., 114 Cal. App. 4th 906, 912 (Cal. Ct. App. 2003). Moreover, a decision in favor of Sanders would prompt an increase in the number of inmates challenging the sentencing phase of their trial in the hopes that invalidating even one special circumstance might trigger a favorable reweighing. The potential for challenges may not be limited to death row inmates because state sentencing statutes for non-capital offenses often involve assessment of aggravating circumstances as well. See e.g. R.I. Gen. Laws 11-8-2 ; Minn. Stat. 609.108.
In deciding this case the Supreme Court will address at least one, and possibly two, issues involving state sentencing guidelines. Initially the court will decide whether statutes that are worded similarly to California's and compel the jury to consider “special” or “aggravating” circumstances in determining criminal sentences will be interpreted as “weighing” or “non-weighing” statutes. If the Court rules in the affirmative, it may also determine whether appellate courts must explicitly find that trial courts' erroneous findings of such circumstances were harmless in order to uphold sentences. This is an important decision for prosecutors, defendants, and convicts whose courtroom tactics and future punishments stand to be affected.
Arnab K. Chaudhuri
Nina H. Jenkins-Johnston