• Detention of Passengers in a Lawfully Stopped Vehicle
• “Unanimity” and “Burden of Proof” Requirements in the Penalty Phase of a Capital Case

Officers making a traffic stop may lawfully order passengers to remain in the vehicle for the duration of the traffic stop.  A jury need not be unanimous in determining which aggravating factors apply during the penalty phase of a capital murder case.  The burden of proof during the penalty phase in proving aggravating factors is proof by a preponderance of the evidence. 

Defendant Don’te Lamont McDaniel was a member of the Bounty Hunter Bloods, a Southeast Los Angeles street gang which controlled the Nickerson Gardens area; a large public housing complex.  At around 3:30 a.m. on April 6, 2004, defendant and another gangster (prosecuted separately) recruited (allegedly at gunpoint) Elois Garner to knock on the back door of a Nickerson Gardens apartment rented to Annette Anderson.  Inside the apartment at the time were Annette, George Brooks, Janice Williams and Debra Johnson.  (There was some inference in the case decision that Brooks—also a Bounty Hunter Blood member—had stolen drugs from defendant and was selling them.)  When asked who was knocking, Elois Garner identified herself.  Janice Williams opened the door, only to be confronted by defendant pointing a gun at her.  Defendant immediately shot and wounded Williams, who lost consciousness.  (Williams survived.)  George Brooks, standing in the kitchen, was shot numbers times and died at the scene.  Annette Anderson—also in the kitchen--was shot numerous times, also dying at the scene.  Debra Johnson, who was in the living room, was seriously wounded with gunshot wounds to her face and chest.  (Johnson survived.)  Nine-millimeter and a .357 magnum shell casings were recovered from the scene.  Both Williams and Johnson identified defendant to investigators as the shooter.  On April 11—five days after the shooting—Los Angeles County Deputy Sheriffs Marcus Turner and Eric Sorenson were on patrol in the Nickerson Gardens area when they noticed a Toyota without a license plate driving on 120th Street near Central Avenue. Two individuals were in the Toyota.  The deputies activated their marked vehicle’s emergency lights in an attempt to pull it over.  The car continued on for about 10 seconds during which it was noticed that the passenger’s head kept moving back and forth, as if “conversating” (sic) with the driver.  Deputy Turner activated the siren, prompting the car to pull to the curb. As soon as the car stopped, the passenger—identified as defendant—opened his door, “stepped out and made a motion” as if he was about “to run out of the vehicle.”   Deputy Sorenson yelled at defendant to get back into the car.  Defendant complied.  Determining that the driver did not have a driver’s license, he was arrested and put into the patrol vehicle.  Defendant was asked to step out of the car in preparation for a pre-impound inventory search of the vehicle (the legality of which was not contested). As he did so, Deputy Turner noticed a bulge in defendant’s right front pants pocket that resembled a gun.  Defendant was immediately patted down for weapons, resulting in the recovery of a loaded semiautomatic nine-millimeter Ruger pistol and a separate loaded magazine.  The nine-millimeter cartridges recovered from the murder scene were later matched to this Ruger.  Defendant’s motion to suppress the firearm was denied by the trial court.  He was tried and convicted of two counts of murder, two counts of attempted murder, and other charges, with special circumstances being found to be true.  Upon the jury determining during the penalty phase of the trial that the aggravating factors outweighed any factors in mitigation, defendant was sentenced to death.  His appeal to the California Supreme Court was automatic.

California Supreme Court, in a unanimous decision, affirmed. 

(1) Ordering a Passenger to Remain in the Vehicle:  Among the issues on appeal was the legality of Deputies Turner and Sorenson ordering defendant, as a passenger in a legally stopped motor vehicle, to remain in the car during the April 11th traffic stop.  Defendant’s argument on appeal was that he had been unlawfully detained when ordered to remain in the car, and that had he been allowed to leave, the firearm (the murder weapon) he was carrying would never have been found.  The Court disagreed.  The United States Supreme Court, while never specifically deciding this issue, has held that for all intents and purposes, both the driver and any passengers in a lawfully stopped vehicle have, in effect, been “seized.”  (Brendlin v. California (2007) 551 U.S. 249, 251.)  The fact that a passenger in a stopped vehicle is not allowed to leave does not mean that he has been unlawfully detained.  To the contrary, the U.S. Supreme Court has held, at least in general terms, that such a “seizure” of the passenger, during the duration of a lawful traffic stop, is lawful.  Per the U.S. Supreme Court:  “The temporary seizure of driver and passengers (Italics added) ordinarily continues, and remains reasonable, for the duration of the stop.”  (Arizona v. Johnson (2009) 555 U.S. 323, 333.) Recognizing the inherent dangerousness of any traffic stop, the High Court has noted that the “risk of harm to both the police and the occupants is minimized if the officers (are allowed to) routinely exercise unquestioned command of the situation.”  (Maryland v. Wilson (1977) 519 U.S. 408, 414, quoting Michigan v. Summers (1981) 452 U.S. 692, 702–703.)  With such safety concerns in mind, the U.S. Supreme Court has ruled that a police officer may order the driver to get out of the vehicle pending the completion of the traffic stop if, in the officer’s judgment, it is safer to do so under the circumstances. (Pennsylvania v. Mimms (1977) 434 U.S. 106, 111.)  The Mimms rule has been extended to ordering passengers to get out of a lawfully stopped vehicle (Maryland v. Wilson, supra, at p. 410.), it being noted in Wilson that “the presence of more than one occupant of the vehicle increases the possible sources of harm to the officer.” (Id. at p. 413.)   Noting authority for the argument that the need for imposing upon a passenger’s “personal liberty” during a traffic stop is “stronger than that for the driver,” the California Supreme Court in this new case ruled that requiring a passenger to remain in the vehicle during the duration of the traffic stop does not violate the Fourth Amendment.  Per the Court:  “Under (Arizona v.) Johnson (supra), his (i.e., defendant’s) temporary seizure was reasonable for the duration of the stop, and Deputy Sorenson ‘surely was not constitutionally required to give [McDaniel] an opportunity to depart the scene after he exited the vehicle without first ensuring that, in so doing, [the officer] was not permitting a dangerous person to get behind [him].’” (Citing Johnson, supra, at p. 334.)  It was therefore not a Fourth Amendment violation for Deputy Sorenson to order defendant to remain in the vehicle.  The lawfulness of the resulting patdown for weapons was not challenged. 

(2)  The Issue of Proving Special Circumstances and Factors in Aggravation:  As noted, the instance case is a death penalty (or “capital”) murder case.  In any capital case, in addition to a violation of first degree murder, the People must allege and prove one or more “special circumstances.”  (As listed in P.C. § 192.2(a)(1)-(22).)  If the defendant is found guilty of first degree murder (per P.C. §§ 187(a), 189(a), or 189.1), and the jury determines one or more special circumstances to be true (per P.C. § 190.4(a))—the standard for both issues being “proof beyond a reasonable doubt”—then defendant’s sentence is elevated from the indeterminate sentence of “25-years-to-life” to either “life without the possibility of parole,” or death (P.C. §§ 190.2(a) & 190.3).  The determination whether a defendant’s ultimate sentence is to be life without parole, or death, is made in a second—or “penalty phase”—of the trial.  (P.C. § 190(a))  In the penalty phase, the prosecution is to introduce evidence of “aggravating factors” while, at the same time, defendant has the opportunity to provide evidence of any factors in mitigation.  (See P.C. § 190.3, “factors (a)” through “(k)”.)  In this case, the jury heard evidence during the penalty phase of “numerous instances of aggravating evidence” (i.e., “factor (b)”) which included ten instances of past crimes (“factor (c)”).  The issue raised in this case was whether it is constitutionally required that a jury, in the penalty phase of a capital case, unanimously find the existence of such “aggravating factors,” and whether such findings must be proved “beyond a reasonable doubt.” 

(2a) Unanimity:  Penal Code § 1042 provides that “issues of fact shall be tried in the manner provided in Article I Section 16 of the Constitution of this state.” Article I, section 16 provides: “Trial by jury is an inviolate right and shall be secured to all, . . .” Together these provisions have been held to codify a right to “juror unanimity” on “issues of fact” in criminal trials.  Defendant’s argument on appeal was that this state law principle, grounded in article I, section 16 of the California Constitution, also requires unanimity among the penalty phase jurors in order to find the existence of any particular aggravating factor, at least when such a factor is disputed.  Despite the Attorney General’s concession that such a requirement would add validity to a death sentence, and the Court’s agreement that this wouldn’t be a bad idea, the Court ultimately held that such a requirement is not mandated by state law.  The California Supreme Court has previously held that jury unanimity on the existence of aggravating factors in the penalty phase of a death penalty case is not required under the state Constitution. (See, e.g., People v. Hartsch (2010) 49 Cal.4th 472, 515.)  The U.S. Supreme Court, applying Sixth Amendment principles, has held that any fact (other than the fact of a prior conviction) that increases the penalty for a crime beyond the prescribed statutory maximum must be found by a unanimous jury and proved beyond a reasonable doubt.  (See Apprendi v. New Jersey (2000) 530 U.S. 466.)  The California Supreme Court, however, has ruled that Apprendi does not apply to the determination of aggravating factors in a California death penalty case.  Under California law; “the jury as a whole need not find any one aggravating factor to exist,” so long as it determines that overall, the aggravating factors outweigh the mitigating factors. The penalty determination involves the “free weighing of all the factors relating to the defendant’s culpability.”  That is because a determination between “death” and “life without parole” does not involve an “increase (in) the penalty for a crime beyond the prescribed statutory maximum.”  (People v. Snow (2003) 30 Cal.4th 43.)  The Court further noted that there is a difference between (1) the guilt phase of a capital case where “special circumstances” must be found beyond a reasonable doubt by a unanimous jury verdict in order to increase the potential sentence from “25-year-to-life” to “life without the possibility of parole or death,” and (2) the penalty phase determination of “life without parole,” or “death;” the latter considered not to be a an increase in the penalty.  In sum, the Court held that “neither article I, section 16 of the California Constitution nor Penal Code section 1042 provides a basis to require unanimity in the jury’s determination of factually disputed aggravating circumstances.” 

(2b) Burden of Proof:  California law requires that the existence of aggravating factors at the penalty phase of a capital murder case need be proved only by a “preponderance of the evidence,” and not “beyond a reasonable doubt.”  (People v. Hartsch, supra, 49 Cal.4th at p. 515.)  Defendant, on appeal, challenged this theory, arguing that in order to choose “death” over “life without the possibility of parole,” a jury must find that aggravating circumstances outweigh mitigating circumstances beyond a reasonable doubt.  Noting that this issue has not yet been “fully considered,” the Court ruled, nonetheless, that a jury’s recommendation of death over life without parole is not one that must be supported by the “beyond a reasonable doubt” standard.  What it comes down to, per the Court, is whether a jury’s determination of the appropriate penalty constitutes “factfinding.”  Even assuming that any factfinding function assigned to a jury requires proof beyond a reasonable doubt, the Court concluded that determining a defendant’s penalty is not part of the factfinding process.  “(W)e conclude that the jury’s ultimate decision selecting the penalty in a capital case does not constitute ‘factfinding’ in any relevant sense.”  Also, referring again to Penal Code § 1042 and Article I Section 16 of the California Constitution, guaranteeing to a defendant a trial by a jury in a criminal case, the Court held once more that these provisions are not to be interpreted to guarantee a criminal defendant a “beyond a reasonable doubt” standard in the determination of the appropriate penalty.  As such, the Court ruled that a jury’s determination by a “preponderance of the evidence” that death is the appropriate sentence in a capital case is constitutionally sufficient.   

I included the penalty phase “aggravating factors” issue in this brief partially because this issue is of primary importance to prosecutors, judges, and criminal defense attorneys.  And while not directly effecting what cops do in the field, as an important topic, it wouldn’t hurt law enforcement to at least be familiar with the concept.  It is also an extremely important legal point for which this new California Supreme Court decision will be known in the years to come.  That having been said, prosecutors should also note that California Supreme Court Justice Goodwin Liu, who authored this decision, also wrote an 18-page concurring opinion to his own opinion, suggesting strongly that California’s death determination procedures, as discussed in his primary opinion, may in fact be an unconstitutional violation of the Sixth Amendment and contrary to the dictates of the U.S. Supreme Court’s decision in Apprendi v. New Jersey (2000) 530 U.S. 466.  As no more than a “concurring opinion,” and not adopted by any of the other six justices, Justice Liu’s opinions as expressed in his concurring opinion is not the law.  But if it ever becomes the law, we can expect just about every killer on death row to be arguing that such a drastic change in the law affects his or her death sentence.  So we have to expect defense attorneys to cite liberally from Justice Liu’s concurring opinion in future death penalty cases.   On the issue of requiring defendant to remain in the vehicle, although there is no U.S. Supreme Court case specifically holding that officers may demand that either the driver or passengers remain in a vehicle stopped for a traffic infraction, it was noted in a dissenting opinion in Pennsylvania v. Mimms, supra, in a footnote (pg. 119, fn. 10), that studies have found that it is safer for an officer during a traffic stop to require the driver to remain in his vehicle.  The Ninth Circuit is in accord with this conclusion, extending the rule to passengers, and finding that the officer’s safety outweighs the minimal intrusion involved in maintaining the status quo by returning a passenger to where he was in the car.  (United States v. Williams (9th Cir. 2005) 419 F.3rd 1029.)  In a footnote in Williams (pg. 1032, fn. 2), the Ninth Circuit cites state cases from across the nation (other than California) that agree.   Under the same rationale, some other federal circuit courts have ruled that an officer may order a passenger to remain in the vehicle, at least where the passenger has failed to express an intent to simply leave the scene, or when the passenger is interfering with the officer’s contact with the driver.  (See Rogala v. District of Columbia (D.C. Cir. 1998) 161 F.3rd 44; and United States v. Moorefield (3rd Cir. 1997) 111 F.3rd 10, 13.)  And lastly, in People v. Castellon (1999) 76 Cal.App.4th 1369, California’s Fourth District Court of Appeal (Div. 3; Orange County) upheld the lawfulness of an officer’s order to a passenger to remain in the vehicle:  Per the Court:  “(W)e will not second-guess (the officer’s) reasonable in-the-field call; it was for the officer to decide whether his personal safety was better preserved by ordering Castellon to stay inside the car or by ordering him out of the vehicle;” disagreeing on this issue with the Sixth District Court of Appeal in People v. Gonzalez (1992) 7 Cal.App.4th 381, which held to the contrary.  Inexplicably, none of this authority was cited by the California Supreme Court in this new case.