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People v. Kraft8/10/2000
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We rejected a similar contention in People v. Welch (1999) 20 Cal.4th 701, 767, finding no reason to believe that a jury, given instructions that aggravating factors must be proven beyond a reasonable doubt, but told nothing about mitigating factors, would think it could consider mitigating circumstances only if proven beyond a reasonable doubt. Likewise, we find no reason on the record of this case to believe the jury misunderstood its ability to consider mitigating evidence.
6. Reliability of Defendant's Conviction and Sentence
Alluding to various asserted errors in his trial, under the rubric of the Fifth, Eighth, and Fourteenth Amendments to the federal Constitution, defendant contends his conviction and sentence lack the "heightened level of reliability" required of death judgments. His briefing on this point raises no arguments or authority not previously asserted and thus fails to cast doubt on the judgment.
7. Constitutionality of Death Penalty Law
Defendant mounts a number of challenges to the constitutionality of California's death penalty law, both facially and as applied to him. We have addressed all his facial challenges in previous cases; none has merit. Specifically, section 190.2 adequately performs the narrowing function mandated by the Eighth Amendment to the federal Constitution, as construed in Zant v. Stephens (1983) 462 U.S. 862, 877. (People v. Crittenden (1994) 9 Cal.4th 83, 155-156; People v. Bacigalupo (1993) 6 Cal.4th 457, 467.) In particular, the felony-murder special circumstance is not overbroad despite the number of different possible predicate felonies and the lack of a requirement that the killer have had the intent to kill. (People v. Marshall (1990) 50 Cal.3d 907, 946; Tison v. Arizona (1987) 481 U.S. 137, 158.) The scope of prosecutorial discretion whether to seek the death penalty in a given case does not render the law constitutionally invalid. (People v. Crittenden, supra, at p. 152.) The law is not unconstitutional for failing to require proof beyond a reasonable doubt of aggravating factors, in support of a finding that aggravation outweighs mitigation, or that death is the appropriate penalty. (People v. Memro (1995) 11 Cal.4th 786, 886.) Nor is the law constitutionally infirm because it does not require intercase or intracase proportionality review. (People v. Arias (1996) 13 Cal.4th 92, 192-193.) Section 190.3, factor (a) ("circumstances of the crime") is not unconstitutionally vague. (Tuilaepa v. California (1994) 512 U.S. 967, 976.) Written findings concerning aggravating factors the jury has found to be true are not constitutionally required. (People v. Memro, supra, at pp. 886-887.) Prosecutorial reliance on unadjudicated criminal activity during the penalty phase does not render a defendant's sentence unreliable. (People v. Hawthorne (1992) 4 Cal.4th 43, 76.) The use of the word "extreme" in section 190.3, factor (d) ("extreme mental or emotional disturbance") does not preclude consideration of mitigating evidence in violation of the Constitution. (People v. Memro, supra, at p. 887.) The trial court was not constitutionally required to inform the jury that certain sentencing factors are relevant only in mitigation, and the statutory instruction to the jury to consider "whether or not" certain mitigating factors were present did not unconstitutionally suggest that the absence of such factors amounted to aggravation. (Ibid.) Indeed, in the present case the trial court expressly instructed the jury it should not consider the absence of any mitigating factor as a factor in aggravation.
III. DISPOSITION
The judgment is affirmed.
WE CONCUR:
GEORGE, C.J.
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