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People v. Whitt10/25/1990
e defendant was of sound mind at the time of the crimes.
The Attorney General argues that because these claims relate only to the intent-to-kill element, any error is harmless under People v. Anderson (1987) 43 Cal. 3d 1104 [240 Cal. Rptr. 585, 742 P.2d 1306] (Anderson). We agree. Anderson overruled Carlos 's holding that the 1978 death penalty law imposes a blanket intent-to-kill requirement on all felony-murder special circumstances. Anderson held that intent to kill need be charged and proved for a felony-murder special circumstance only where the defendant was an aider and abettor to the homicide and not the actual killer. (43 Cal. 3d at pp. 1138-1147.) Here, defendant does not dispute, and the evidence confirms, that he personally killed McCafferty in the commission of a robbery upon Weisz. All four challenges to the special circumstance finding on retrial are immaterial under Anderson.
For similar reasons, we reject defendant's claim that a valid intent-to-kill determination was necessary to satisfy the Eighth Amendment. Assuming proper consideration of individual circumstances, a death sentence may constitutionally be exacted against one who " actually killed, attempted to kill, or intended to kill . . . ." (Tison v. Arizona (1987) 481 U.S. 137, 150 [95 L.Ed.2d 127, 139, 107 S.Ct. 1676] (italics added), construing Enmund v. Florida (1982) 458 U.S. 782 [73 L.Ed.2d 1140, 102 S.Ct. 3368]; in accord, Cabana v. Bullock (1986) 474 U.S. 376, 386 [88 L.Ed.2d 704, 716-717, 106 S.Ct. 689].) Defendant's attempt to distinguish the Tison-Enmund-Cabana line of cases on grounds it concerns only "non-killer" felony murderers is unpersuasive. The high court has made clear that imposition of the death penalty upon "actual killers," like defendant, is not unconstitutional per se.
Defendant responds that to apply Anderson, supra, 43 Cal. 3d 1104, retroactively to his crimes violates federal due process because he lacked "fair warning" that intent to kill was not a prerequisite to death eligibility. (See Bouie v. City of Columbia (1964) 378 U.S. 347, 352 [12 L.Ed.2d 894, 899, 84 S.Ct. 1697] [barring "unforeseeable" retroactive expansion of criminal liability].) We rejected the same claim in People v. Poggi (1988) 45 Cal. 3d 306, 326-327 [246 Cal. Rptr. 886, 753 P.2d 1082], on grounds that
the statute itself "ambiguous" and provides ample "pre- Carlos foreseeability of a holding that such intent is not required for the actual killer. [Citation.]" (Compare In re Baert (1988) 205 Cal. App. 3d 514, 517-522 [252 Cal. Rptr. 418], review den. Jan. 19, 1989, cert. den. sub nom. California v. Baert (1989) 492 U.S. 918 [106 L.Ed.2d 589, 109 S.Ct. 3242] [refusing to apply Anderson to crimes committed in the four-year "window" period between Carlos and Anderson ].)
Defendant asks us to reconsider Poggi, supra, 45 Cal. 3d at pages 326-327, but we see no reason to do so. Anderson has since been applied to appellants convicted of pre- Carlos felony murder, even where a Carlos instruction was given at their trials. (See, e.g., People v. Ramirez (1990) 50 Cal. 3d 1158, 1182-1183 [270 Cal. Rptr. 286, 791 P.2d 965]; People v. McDowell (1988) 46 Cal. 3d 551, 566 [250 Cal. Rptr. 530, 758 P.2d 1060]; see also People v. Burton (1989) 48 Cal. 3d 843, 858-859 [258 Cal. Rptr. 184, 771 P.2d 12
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