Criminal Appeal

Cal. Supreme Court Upholds Trial Court Finding Of Mental Retardation In Capital Case

In a unanimous opinion, the California Supreme Court today upheld a trial court's finding that a capital defendant was mentally retarded and therefore categorically excluded from the death penalty under Atkins.

California Penal Code section 1376 defines "mentally retarded" as "the condition of significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested before the age of 18." At a pre-trial evidentiary hearing held to determine whether the defendant was mentally retarded, the trial court heard testimony from two defense experts and one prosecution expert. The defense experts acknowledged that the defendant's full scale IQ scores - which ranged from 77 to 92 - were greater than 70, which is generally understood to lie at or near the border between low average intelligence and mild mental retardation. Nevertheless, the defense experts relied heavily on the defendant's verbal IQ score - one component of the full scale IQ score - to conclude that appellant was indeed mentally retarded. The trial court was persuaded by the defense evidence and barred the prosecution from seeking the death penalty.

Divsion Six of California's Second District Court of Appeal reversed the trial court on the ground that it was legal error for the trial court not to give primary consideration to the defendant's full scale IQ scores.

The Supreme Court reversed, ruling that the Court of Appeal erred in purporting to resolve a factual question - the best scientific measure of intellectual functioning - as a matter of law. According to the Supreme Court, Penal Code section 1367 does not dictate primary reliance on the full scale IQ score. Of significance to the Supreme Court was the fact that Penal Code section 1367 makes no reference to one or another clinical test of intelligence, any more than it refers to a particular score as a cutoff point for mental retardation.

In eschewing the rigid rule adopted by the Court of Appeal and favored by the prosecution, the Supreme Court made it clear that mental retardation is a question of fact that "must be based on all relevant evidence." With successful challenges to the imposition of the death penalty few and far between, this decision is an important one that should encourage defense attorneys representing capital defendants with marginal IQ scores to reconsider requesting an Atkins hearing.

In addition to the primary substantive holding of this case, the Supreme Court also concluded that a pre-trial finding of mental retardation is an order from which the prosecution may appeal.

The unanimous opinion was authored by Justice Kathryn M. Werdegar.

People v. Superior Court (Vidal), no. S134901 (Cal. Supreme Ct., filed 4/12/07)

9th Cir. Rejects Three-Striker's 8th Amend Claim

This morning the Ninth Circuit rejected a California inmate's 8th Amendment challenge to his  25-to-life three strikes sentence. Taylor v. Lewis (9th Cir. no. 04-17517, Aug. 15, 2006).  The sentence was imposed for possession of .036 grams of cocaine.Taylor's strikes included a 1980 voluntary manslaughter conviction and a 1986 robbery with personal gun use. (Perhaps it was the prior manslaughter conviction that led the AG to not bother to file a brief in this appeal.)

In its proporitionality review, the court noted that Taylor's 25-to-life sentence was less severe than the sentence in Solem (LWOP), more severe than that in Rummel (12-to-life) and "identical" to the three strikes sentence recently upheld in Andrade and Ewing. (That's not quite correct because the sentence in Andrade was 50-to-life; but for proportionality review, when comparing to one count of petty theft, 25-to-life might be the relevant term to consider.) The Court then rejected Taylor's argument that his possession offense was less serious than the property crimes in Rummel ($120.75 by false pretenses), Andrade ($153.54 worth of videotapes) and Ewing (three golf clubs worth $399 each) because his crime was victimless:

Accordingly, it was not unreasonable for the California Court of Appeal to consider Taylor’s triggering offense at least as serious as the property offenses involved in Rummel, Ewing, and Andrade, where the Supreme Court upheld recidivist sentences of 12 or 25 years to life.

After then noting how Taylor's prior criminal history, including the voluntary manslaughter, was more serious than that in the other cases, the Court concluded no relief was available under AEDPA:

in light of Rummel, Ewing, and Andrade, where the Supreme Court upheld lengthy recidivist sentences, we are satisfied that the state court was not required to find a violation of the Eighth Amendment because: (1) Taylor will be eligible for parole after 25 years; (2) his triggering offense was, at least, not obviously less serious than a property offense such as felony grand theft; and (3) his prior offenses involved violence and crimes against a person, and he has served multiple prior prison terms.

Judge O'Scannlain wrote the opinion and was joined by Judges Goodwin and Thomas. Judge Thomas, whose entire opinion follows, wrote separately to express that his vote was compelled by AEDPA:

Because I believe that the state court decision was not an objectively unreasonable application of clearly established federal law as determined by the Supreme Court of the United States, I concur in the judgment.

Denial of Motion to Strike (Cal. Pen. Code sec. 1385) Prior Strike Allegation is Reviewed for Abuse of Discretion. People v. Carmony, no. S115090 (Cal.Supreme Court, July 8, 2004) (author: Brown; unanimous.)

Note: Justice Moreno (with Justice Chin concurring) wrote a short separate concurring opinion emphasizing that the Court's decision that there was no abuse of discretion in the denial of the motion to strike in this case did not preclude a finding, upon remand, that the sentence violated the 8th Amendment. Justice Moreno was clearly troubled by the life sentence in this case:

it is difficult to escape the conclusion that the electorate that enacted the Three Strikes law did not intend to impose a life sentence on someone whose last offense was a technical violation of the sex offender registration statute --- failing to register within five days of his birthday although he had registered a month earlier and had not changed his address since then --- that posed no danger to the public. This case joins the growing ranks of cases in which life sentences were imposed after the commission of minor felonies.

Misdmeanor Prosecution of Involuntarily-Homeless Chronic Alcoholic for Public Intoxication Is Not Cruel & Unusual Punishment. People v. Kellogg, no. D042696 (Cal.Ct.App. (4th Dist., Div. 1) June 17, 2004).

COA did concede, "criminal prosecution may not be the preferred way to address the daunting challenges faced by a person in Kellogg's position."