In Re Hawthorne

Petitioner Anderson Hawthorne, Jr., is under a judgment of death. He challenges his sentence as cruel and unusual punishment based on allegations he is mentally retarded. Under the authority of Penry v. Lynaugh (1989) 492 U.S. 302 [ 106 L.Ed.2d 256 , 109 S.Ct. 2934 ], we denied three previous petitions for writ of habeas corpus raising this same claim. Subsequently, however, the United States Supreme Court overruled Penry and held that execution of the mentally retarded violates the Eighth Amendment. *44 (Atkins v. Virginia (2002) 536 U.S. 304, 321 [ 153 L.Ed.2d 335 , 122 S.Ct. 2242 ] (Atkins).) Thereafter, petitioner filed this fourth petition asserting a single claim for relief under Atkins.

While the matter was pending, the California Legislature enacted Penal Code section 1376 (section 1376), which sets forth the standards and procedures for determining whether a defendant against whom the prosecution seeks the death penalty is mentally retarded within the meaning of Atkins . (Stats. 2003, ch. 700, § 1.) By its terms, section 1376 applies only to preconviction proceedings. We issued an order to show cause to determine how to resolve postconviction claims of mental…

I concur with the majority opinion, which I have signed. I write separately only to stress that although Penal Code section 1376 (section 1376) states no particular intelligence quotient (IQ) below which a person must score in order to be considered mentally retarded, standardized tests like IQ tests remain important. As the majority opinion explains (maj. opn., ante, at p. 47), section 1376’s standard is derived from Atkins v. Virginia (2002) 536 U.S. 304 [ 153 L.Ed.2d 335 , 122 S.Ct. 2242 ] (Atkins). The Atkins court said that the 70-75 IQ range “is typically considered the cutoff IQ score for the intellectual function prong of the mental retardation definition.” (Atkins, supra, at p. 309, fn. 5 .) Thus, a person whose IQ score is over 75 is very likely not mentally retarded, and in many, perhaps most, cases, a petitioner will not be entitled to relief absent a showing of an IQ at or below the 70-75 range.

Section 1376 defines mental retardation, in part, as including “significantly subaverage” intellectual functioning. (§ 1376, subd. (a).) The American Association on Mental Retardation (AAMR) states in its amicus curiae brief that “the term ‘significantly subaverage’ has been…

Petitioner Anderson Hawthorne, Jr., is under a judgment of death. He challenges his sentence as cruel and unusual punishment based on allegations he is mentally retarded. Under the authority of Penry v. Lynaugh (1989) 492 U.S. 302 , 109 S.Ct. 2934 , 106 L.Ed.2d 256 , we denied three previous petitions for writ of habeas corpus raising this same claim. Subsequently, however, the United States Supreme Court overruled Penry and held that execution of the mentally retarded violates the Eighth Amendment. ( Atkins v. Virginia (2002) 536 U.S. 304, 321 , 122 S.Ct. 2242 , 153 L.Ed.2d 335 ( Atkins ).) Thereafter, petitioner filed this fourth petition asserting a single claim for relief under Atkins.

While the matter was pending, the California Legislature enacted Penal Code section 1376 (section 1376), which sets forth the standards and procedures for determining whether a defendant against whom the prosecution seeks the death penalty is mentally retarded within the meaning of Atkins . (Stats.2003, ch. 700, § 1.) By its terms, section 1376 applies only to preconviction proceedings. We issued an order to show cause to determine how to resolve postconviction claims of mental…