People v. Superior Court

I concur, except that I would rely solely on the California Constitution.

The People petition for writs of mandate to compel respondent superior court to set aside orders striking, as unconstitutionally vague, special circumstance allegations based on subdivision (a)(14) of Penal Code section 190.2.

In separate prosecutions for murder, defendants and real parties in interest Engert and Gamble challenged the special circumstance allegations that the murders were “especially heinous, atrocious, and cruel, manifesting exceptional depravity as described in Penal Code section 190.2(a)(14).” In each case respondent court ordered the allegation stricken on grounds that it was unconstitutionally vague and violative of due process in failing to “provide an ascertainable standard of conduct or workable standard of guilt.”

An order of the trial court striking a portion of an information is appealable by the People under subdivision (a)(1) of Penal Code section 1238, providing for appeal of “[a]n order setting aside the indictment, information, or complaint.” (See People v. Burke (1956) 47 Cal.2d 45, 53-54 [ 301 P.2d 241 ]; People v. Espinoza (1979) 99 Cal.App.3d 59, 65-68 [ 159 Cal.Rptr. 894 ]; also People v. Braeseke (1979) 25 Cal.3d 691, 699, 701 […

I respectfully dissent. The majority invalidates a provision of the 1978 death penalty law which creates the following “special circumstance” allowing imposition of death or life imprisonment without parole: “(14) The murder was especially heinous, atrocious, or cruel, manifesting exceptional depravity, as utilized in this section, the phrase especially heinous, atrocious or cruel manifesting exceptional depravity means a conscienceless, or pitiless crime which is unnecessarily torturous to the victim.” (Pen. Code, § 190.2, subd. (a).)

*810 The majority finds that the terms “heinous,” “atrocious,” “cruel” and “depravity” are unconstitutionally vague because they “address the emotions and subjective, idiosyncratic values [lacking] directive content.” (Ante, p. 802.) Moreover, the majority holds that the definitional phrase (“a conscienceless, or pitiless crime which is unnecessarily torturous to the victim”) “only add[s] to the vagueness problem.” (Ante, p. 803.)

It is significant that if an insurmountable “vagueness problem” truly exists, we are the only court to discern it. My research discloses that all other courts which have considered the issue, including the United States…