People v. Zadurian CA2/8

DISCUSSION

A. The Felony-Murder Special Circumstance Statute (§ 190.2, subd. (a)(17)) Does Not Violate the Eighth Amendment

Defendant contends section 190.2, subdivision (a)(17), which makes felony murder a capital offense, violates the Eighth Amendment’s proscription against cruel and unusual punishment, which is applicable to the states by virtue of its incorporation into the Due Process Clause of the Fourteenth Amendment, because the statute does not adequately “narrow the class of defendants eligible for special circumstance treatment.” He argues the absence of a distinction between first degree felony murder (§ 189) and special circumstance felony murder (§ 190.2, subd. (a)(17)) renders the special circumstance felony murder statute unconstitutional. Defendant concedes that his contention has been rejected by the California Supreme Court, and that we are bound to follow that precedent (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), but raises the issue to preserve it for federal review. The People counter that defendant forfeited this claim by failing to raise it in the trial court, that defendant lacks standing because he was not sentenced to…