People v. Superior Court (Colbert)

Opinion

BROWN (Gerald), P. J.

On December 12, 1977, real party in interest, Charles Colbert, was arraigned on an information charging murder (count 1), forcible rape (counts 2, 4, 7 and 10), forcible sodomy (counts 3 and 5), forcible oral copulation (counts 6, 8, and 11), and assault by means of force likely to produce great bodily injury (count 9).

On December 30, 1977, Colbert was arraigned on an amended information which alleged a special circumstance relating to the charge of murder. The allegation added by amendment states: “And, it is further alleged that Charles Colbert was personally present during the commission of the acts causing death, and with intent to cause death physically committed such acts causing death that the murder was willful, deliberated and premeditated and was committed during the commission of rape by force or violence in violation of subdivision (2) of section 261 and by threat of great and immediate bodily harm in violation of subdivision (3) of section 261, in violation of Penal Code 190.2(3) (in).”

Demurring to the special circumstance allegation, Colbert argued (1) article I, section 27, of the California Constitution is invalid because it effects a revision of the Constitution and the procedures for constitutional revision were not followed in its adoption; (2) in the absence of article I, section 27, the death penalty is cruel and unusual within the meaning of article I, section 17, of the California Constitution

(People

v.

Anderson,

6 Cal.3d 628 [100 Cal.Rptr. 152, 493 P.2d 880]); and (3) the special circumstance allegation should therefore be stricken.

[1026]

On March 13, 1978, the superior court, upon its perception article I, section 27, interferes with inherent judicial power to interpret the language of the Constitution, concluded the section was a constitutional revision and was not, therefore, properly adopted.

1

The court sustained the demurrer and ordered the special circumstance allegation stricken.