People v. Superior Court

Opinion

PUGLIA, P. J. Petitioners (the People) contend the superior court abused its discretion in refusing to set an execution date after the California [903]Supreme Court affirmed the judgment of death entered against real party in interest (defendant). We shall conclude that under Penal Code section 1193 the fixing of a date for imposition of the death penalty cannot be made contingent on the disposition of applications for further judicial review of the judgment beyond the direct appeal to this state’s high court.

The facts, as set forth in the People’s petition, are not in dispute. On June 22, 1990, the Supreme Court affirmed the judgment of death previously imposed in defendant’s case. On August 29 its remittitur issued. The superi- or court, pursuant to rule 490 of the California Rules of Court, scheduled a public session for October 18 to set an execution date. Defendant then moved for a continuance of the proceeding until “after final disposition of petition for certiorari in the United States Supreme Court.” The superior court granted a continuance until December 12. At the time that order was entered, no petition for certiorari had been filed. At the continuance hearing, the court also indicated that, assuming a petition was filed before December 12, it would further postpone the proceeding to set an execution date until after the United States Supreme Court acted on the case. We have been advised by counsel for defendant that a petition for certiorari was in fact filed on November 27.

Penal Code section 1193 provides, in pertinent part, that “ . . . when any judgment imposing the death penalty has been affirmed by the appellate court, sentence may be reimposed upon the defendant in his or her absence by the court from which the appeal was taken, and in the following manner: upon receipt by the superior court from which the appeal is taken of the certificate of the appellate court affirming the judgment, the judge of the superior court shall forthwith make and cause to be entered an order pronouncing sentence against the defendant, and a warrant signed by the judge, and attested to by the clerk under the seal of the court, shall be drawn, and it shall state the conviction and judgment and appoint a day upon which the judgment shall be executed, which shall not be less than 60 days nor more than 90 days from the time of making the order . . . .” (Italics added.) Defendant’s interpretation of this language, which the trial court accepted, is that the statute does not specify a definite time within which the proceeding to set an execution data must be held, and it may therefore be delayed for any “reasonable” period. Furthermore, defendant argues, it is entirely reasonable to postpone setting of the date until after the filing and disposition of a petition for certiorari, since experience shows that imposition of sentence will be routinely stayed by the state or federal supreme court in any event. Thus, postponement will obviate the need to submit pro forma stay requests, and spare the superior court from performing an “idle act.”