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CERTIORARI TO THE SUPREME COURT OF CALIFORNIA No.93-5131. Argued March 22, 1994-Decided June 30,1994*

A defendant in California is eligible for the death penalty when a jury finds him guilty of first-degree murder and finds one or more of the special circumstances listed in Cal. Penal Code Ann. § 190.2. The case then proceeds to the penalty phase, where the jury is instructed to consider numerous other factors listed in § 190.3 in deciding whether to impose death. Petitioners Tuilaepa and Proctor were convicted of first-degree murder in separate cases. At the penalty phase of each trial, the jury was instructed to consider the relevant sentencing factors in § 190.3. Both petitioners were sentenced to death, and the State Supreme Court affirmed. Here, they challenge the constitutionality of penalty-phase factor (a), which requires the sentencer to consider the "circumstances of the crime of which the defendant was convicted ... and the existence of any special circumstances found to be true." Tuilaepa also challenges factor (b), which requires the sentencer to consider the "presence or absence of criminal activity [involving] the use or attempted use of force or violence or the express or implied threat to use force or violence," and factor (i), which requires the sentencer to consider the defendant's age at the time of the crime.

Held: The factors in question are not unconstitutionally vague under this Court's decisions construing the Cruel and Unusual Punishments Clause. Pp. 971-980.

(a) The Court's vagueness review is quite deferential, and relies on the basic principle that a factor is not unconstitutional if it has some "common-sense core of meaning ... that criminal juries should be capable of understanding." Jurek v. Texas, 428 U. S. 262, 279 (White, J., concurring in judgment). Petitioners' challenge to factor (a) is at some odds with settled principles, for the circumstances of the crime are a traditional subject for consideration by the sentencer, see, e. g., Woodson v. North Carolina, 428 U. S. 280, 304 (plurality opinion), and factor (a) instructs the jury in understandable terms. Factor (b) is framed in conventional and understandable terms as well. Asking a jury to consider matters of historical fact is a permissible part of the sentencing process. Tuilaepa's challenge to factor (i) is also unusual in light of the

*Together with No. 93-5161, Proctor v. California, also on certiorari to the same court.cralaw



Court's precedents. See Eddings v. Oklahoma, 455 U. S. 104, 115-117. While determining the bearing age ought to have in fixing the penalty can pose a dilemma for the jury, difficulty in application is not the equivalent of vagueness. Pp. 971-977.

(b) This Court's precedents also foreclose petitioners' remaining arguments. Selection factors need not require answers to factual questions. The States are not confined to submitting to the jury specific propositional questions, see, e. g., Zant v. Stephens, 462 U. S. 862, 878-880, 889, and there is no constitutional problem where an instruction directs consideration of a crime's facts and circumstances. Nor must a capital sentencer be instructed how to weigh any particular fact in the sentencing decision. See, e. g., California v. Ramos, 463 U. S. 992, 1008-1009. Pp. 977-980.

No. 93-5131, 4 Cal. 4th 569, 842 P. 2d 1142, and No. 93-5161, 4 Cal. 4th 499, 842 P. 2d 1100, affirmed.

KENNEDY, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and O'CONNOR, SCALIA, SOUTER, and THOMAS, JJ., joined. SCALIA, J., post, p. 980, and SOUTER, J., post, p. 980, filed concurring opinions. STEVENS, J., filed an opinion concurring in the judgment, in which GINSBURG, J., joined, post, p. 981. BLACKMUN, J., filed a dissenting opinion, post, p. 984.

Howard W Gillingham, by appointment of the Court, 510 U. S. 1038, argued the cause and filed briefs for petitioner in No. 93-5131. Wendy C. Lascher, by appointment of the Court, 510 U. S. 1038, argued the cause for petitioner in No.93-5161. With her on the brief was Susan B. Lascher.

Wm. George Prahl, Deputy Attorney General of California, argued the cause for respondent in both cases. With him on the brief were Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, and Dane R. Gillette, Deputy Attorney General. t

t Michael Laurence, Paul L. Hoffman, and Mark Silverstein filed a brief for the American Civil Liberties Union et al. as amici curiae urging reversal in No. 93-5131. Clifford Gardner, Melissa W Johnson, Gail R. Weinheimer, and Steven W Parnes filed a brief for the California Appellate Project as amicus curiae urging reversal in both cases.

Kent S. Scheidegger filed a brief for the Criminal Justice Legal Foundation as amicus curiae urging affirmance in both cases.cralaw

Full Text of Opinion

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