NINTH CIRCUIT CAPITAL PUNISHMENT HANDBOOK - 2006
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Chapter 4: Capital Punishment Handbook: Sentencing Phase Issues

        4.7 Aggravating Circumstances
               4.7  Aggravating Circumstances
                      4.7.1  Statutory And Nonstatutory Aggravating Circumstances
                      4.7.2  Constitutionality of Aggravating Circumstances: Application to Subclass Only; Not Vague
                                4.7.2.1  Applies To Subclass Only; Not Vague
                      4.7.3  Specific Aggravating Circumstances
                                4.7.3.1  Element Of Underlying Crime As Aggravating Factor
                                4.7.3.2  Unadjudicated Criminal Conduct
                                4.7.3.3  "Outrageously Or Wantonly Vile"
                                4.7.3.4  "Wicked Or Morally Corrupt"
                                4.7.3.5  "Heinous, Cruel Or Depraved"
                                4.7.3.6  "Torture, Depravity Of Mind Or Mutilation"
                                4.7.3.7  "Utter Disregard For Human Life""
                                4.7.3.8   Unadjudicated Criminal Conduct
                                4.7.3.9  Protected Conduct
                                4.7.3.10  Prior Felony Convictions
                                4.7.3.11  Pecuniary Gain
                                4.7.3.12  Miscellaneous

In Zant v. Stephens, 462 U.S. 862, 878 (1983), the Supreme Court stated that a capital sentencing statute must “circumscribe the class of persons eligible for the death penalty” by permitting execution only where specified aggravating circumstances are present. The capital sentencer must find at least one aggravating circumstance in order for the defendant to be eligible for the death penalty. This can be done either at the guilt phase of a capital trial, as in California, or as part of the penalty phase.  

The ultimate purpose of statutory aggravating circumstances is to direct and limit sentencing discretion and minimize the risk of arbitrary and capricious infliction of the death penalty. Statutory aggravating circumstances “narrow the class of persons eligible for the death penalty” by providing a meaningful basis for distinguishing the few cases in which capital punishment is imposed from the many in which it is not appropriate. Id. at 877. According to Zant, a constitutional death penalty statute must provide an “objective, evenhanded, and substantively rational way” for drawing this distinction. Id. at 879. A statute that “provides for categorical narrowing at the definition stage and for individualized determination and appellate review at the selection stage” ordinarily will meet this requirement. Id.

In Ring v. Arizona, 536 U.S. 584 (2002), the Supreme Court overruled Walton v. Arizona, 497 U.S. 639 (1990), to the extent that Walton allowed a sentencing judge, sitting without a jury, to find an aggravating circumstance necessary for the imposition of the death penalty. The Supreme Court held that because Arizona’s enumerated aggravating factors operate as “the functional equivalent of an element of a greater offense,” the Sixth Amendment requires that they be found by a jury. Ring, 536 U.S. at 609. See § 4.6.1 for further discussion of Ring.

Ring v. Arizona, 536 U.S. 584 (2002) (overruling Walton v. Arizona, 497 U.S. 639 (1990) to extent that Walton allowed a sentencing judge, sitting without a jury, to find an aggravating circumstance necessary for the imposition of the death penalty).

Tuilaepa v. California, 512 U.S. 967 (1994) (stating sentencer must find at least one aggravating circumstance to render death sentence, citing Lowenfield and Zant).

Lowenfield v. Phelps, 484 U.S. 231 (1988) (stating sentencer must find at least one aggravating factor at guilt or penalty phase in order to sentence death).

Zant v. Stephens, 462 U.S. 862 (1983) (holding aggravating circumstances must genuinely narrow class of persons eligible for the death penalty and justify imposition of death penalty in given case as compared to others).

Godfrey v. Georgia, 446 U.S. 420 (1980) (ruling death sentence invalid because state court did not give limiting construction to aggravating circumstance to “distinguish this case, in which the death penalty was imposed, from the many cases in which it was not”).

Presnell v. Georgia, 439 U.S. 14 (1979) (holding death sentence unconstitutional where no jury finding of an aggravating circumstance is necessary to impose death).

Poland v. Stewart, 117 F.3d 1094, 1098 (9th Cir. 1997) (stating function of aggravating factors is not to give notice to potential defendants that their contemplated conduct would put them at risk but rather to guide sentencer), cert. denied, 523 U.S. 1082 (1998).

McKenzie v. Risley, 842 F.2d 1525, 1538–39 (9th Cir.) (en banc) (stating state capital sentencing procedures must conform to two requirements: (a) must minimize the risk of arbitrary sentencing by delimiting the classes of crimes for which death penalty is permissible punishment and by requiring consideration of mitigating evidence; and (b) must provide review of the death sentence by a state appellate court to ensure sentence is not arbitrary and disproportionate to underlying crime), cert. denied, 488 U.S. 901 (1988).

Subject to the constitutional requirement that a death penalty statute must nonarbitrarily define the class of death-eligible murderers, states are free to determine what aggravating factors best serve this purpose. Unlike mitigating factors, the constitution does not require a state to treat any particular factor as an aggravator. Moreover, in Zant v. Stephens, the Court stated that a statute identifying aggravating circumstances need not also provide standards to govern the jury in weighing the significance of those circumstances. Id. at 880. Finally, in Blystone v. Pennsylvania, 494 U.S. 299, 306–07 (1990), the Court stated that the Eighth Amendment does not require that the jury evaluate the weight of a given aggravating circumstance to determine if the severity of the aggravating circumstance in each particular case justifies the death sentence.

According to Zant and Barclay v. Florida, 463 U.S. 939 (1983), a state may choose to make its statutory aggravating circumstances exclusive or it may permit the consideration of nonstatutory aggravating factors. Any nonstatutory aggravating circumstance considered must be relevant to either the defendant’s character or the circumstances of the crime. Barclay, 463 U.S. at 966–67.

Blystone v. Pennsylvania, 494 U.S. 299, 306–07 (1990) (holding presence of aggravating circumstances serves purpose of limiting class of death-eligible defendants; Eighth Amendment does not require any further weighing of severity of aggravating circumstances by jury).

Wainwright v. Goode, 464 U.S. 78 (1983) (holding despite improper reliance on nonstatutory circumstance under state law, procedures used did not produce arbitrary sentence in violation of Eighth Amendment).

Barclay v. Florida, 463 U.S. 939 (1983) (finding no constitutional violation in sentencer’s improper consideration of nonstatutory aggravating circumstances against state statutory prohibition of consideration of nonstatutory aggravating circumstances, because did not infect balancing process created by state statute).

Zant v. Stephens, 462 U.S. 862 (1983) (stating statutory and nonstatutory factors may be considered; under Jurek v. Texas, specific standards for balancing aggravating against mitigating circumstance are not required).

Mont. Code Ann. §§ 46-18-302, 303 (2005) (listing non-exclusive aggravating circumstances).

Wash. Rev. Code § 10.95.020 (Supp. 2006) (listing circumstances of aggravated first degree murder).

In Tuilaepa v. California, the Supreme Court enumerated two requirements for the constitutionality of an aggravating circumstance: first, it must apply only to a subclass of death-eligible defendants, and second, it must not be vague.

In Arave v. Creech, 507 U.S. 463 (1993) the Court held that an aggravating circumstance must not be applicable to every defendant convicted of murder but rather only to a subclass of such defendants. If an aggravating circumstance could apply to every defendant eligible for the death penalty, then it would not serve to “genuinely narrow” the class of defendants eligible for the death penalty as required in Zant v. Stephens.

To overcome a vagueness challenge, the Court has held that the aggravating factor must channel the sentencing decision against an arbitrary and capricious result. Godfrey v. Georgia, 446 U.S. 420 (1980). A statutory aggravating factor that appears facially invalid may nevertheless be validated by more exacting jury instructions. Thus, federal rulings on a vagueness attack of an identical or similar aggravating circumstance vary among cases, particularly because federal courts afford deference to state interpretation of state law. Moreover, in Tuilaepa v. California, the Supreme Court announced that it has struck down few sentencing factors for vagueness, acknowledging that a factor is constitutional if it has some “commonsense core of meaning . . . that criminal juries should be capable of understanding.” Id. at 973 (quoting Jurek v. Texas, 428 U.S. 262, 279 (1976)).

Tuilaepa v. California, 512 U.S. 967 (1994) (adopting language in Jurek v. Texas, 428 U.S. 262, 279, that factor not unconstitutionally vague if has some “commonsense core of meaning . . . that criminal juries should be capable of understanding”).

Arave v. Creech, 507 U.S. 463, 474 (1993) (stating “[i]f the sentencer fairly could conclude that an aggravating circumstance applies to every defendant eligible for the death penalty, the circumstance is constitutionally infirm”).

Shell v. Mississippi, 498 U.S. 1 (1990) (holding when limiting instructions are used to cure defect in facially vague statute, the instructions must meet specificity requirements of Godfrey).

Walton v. Arizona, 497 U.S. 639 (1990) (holding that Arizona State Supreme Court’s narrowing definition of facially vague statutory aggravating circumstance furnishes sufficient guidance to sentencer to satisfy Eighth Amendment and is therefore not unconstitutionally vague), overruled in Ring v. Arizona, 536 U.S. 584 (2002), to the extent that Walton allowed a sentencing judge, sitting without a jury, to find an aggravating circumstance necessary for the imposition of the death penalty).

Maynard v. Cartwright, 486 U.S. 356 (1988) (stating review process for use of facially vague statutory aggravating circumstances).

Zant v. Stephens, 462 U.S. 862, 877 (1983) (stating aggravating circumstances must genuinely narrow the class of defendants eligible for the death penalty).

Godfrey v. Georgia, 446 U.S. 420 (1980) (stating under post-Furman cases, death penalty statute must not have standards so vague that they create arbitrary and capricious sentencing).

Valerio v. Crawford, 306 F.3d 742 (9th Cir. 2002) (en banc) (holding that “depravity of mind” aggravating-circumstances jury instruction was unconstitutionally vague under Godfrey v. Georgia and that state appellate court cannot cure such error under Walton v. Arizona, by applying a narrowing construction to the instruction to a de novo finding of the facts when the penalty phase factfinder has been a jury; also holding that, even if the Walton procedure were available, the Nevada Supreme Court failed to provide “close appellate scrutiny” and therefore failed to cure the error caused by the unconstitutionally vague jury instruction and the error was not harmless), cert. denied, 538 U.S. 994 (2003).

Knapp v. Cardwell, 667 F.2d 1253, 1260 (9th Cir.) (stating federal courts will not review state court’s interpretation of statute unless clearly untenable and amounts to subterfuge to avoid federal review of the unconstitutional deprivation of rights), cert. denied, 459 U.S. 1055 (1982).

Diale Taliaferro, Note, Constitutional Law—A Ruling on the Constitutionality of a State’s Capital Punishment Statute Under the Eighth and Fourteenth Amendments Requires the Court to Base its Holding on the Relevant State’s Highest Court’s Construction of Such Statute, Rather than its Own, 72 U. Det. Mercy L. Rev. 229 (1994) (analyzing limiting construction used in Arave v. Creech).

In Lowenfield v. Phelps, 484 U.S. 231 (1988), the Supreme Court held that an element of the underlying crime may constitutionally be used as an aggravating circumstance, provided that the constitutionally required narrowing function was performed at the guilt phase of the trial. In such cases, the fact that the aggravating circumstance duplicated one of the elements of the crime did not invalidate the sentence. Id. at 245.

Lowenfield v. Phelps, 484 U.S. 231 (1988) (upholding Louisiana capital punishment scheme in which the intent to kill more than one person is both an element of first degree murder and an aggravating circumstance).

Bonin v. Calderon, 59 F.3d 815 (9th Cir. 1995) (holding jury properly instructed to consider: (a) the circumstances of the crime; and (b) the presence or absence of criminal activity including force or threats of force; instructions did not improperly lead jury to count circumstances of crime twice).

McKenzie v. Risley, 842 F.2d 1525, 1539 (9th Cir.) (en banc) (holding “by means of torture” may be both element of crime and aggravating factor), cert. denied, 488 U.S. 901 (1988).

Odle v. Vasquez, 754 F. Supp. 749 (N.D. Cal. 1990) (holding fact that special circumstance found by California jury is also a statutory aggravating factor does not create presumption in favor of death penalty; invalid special circumstance was harmless error with respect to penalty phase because there was clear record of what was being charged and jury instructed not to count up aggravating and mitigating factors in a mechanical fashion).

United States v. McCullah, 76 F.3d 1087 (10th Cir. 1996) (finding double counting in federal death penalty case where statutory and nonstatutory aggravating factors substantially overlapped).

In a capital case, evidence of unadjudicated criminal conduct may constitute an aggravating circumstance and be admissible at sentencing.

Campbell v. Kincheloe, 829 F.2d 1453, 1461 (9th Cir. 1987) (holding unadjudicated criminal conduct may be introduced to support the aggravating factor of probable future violence), cert. denied, 488 U.S. 948 (1988).

Williams v. Vasquez, 817 F. Supp. 1443 (E.D. Cal. 1993) (holding admission of prior criminal conduct does not violate due process), aff’d, 52 F.3d 1465 (9th Cir. 1995), and cert. denied, 516 U.S. 1124 (1996).

Maynard v. Cartwright, 486 U.S. 356, 362–64 (1988) (stating “outrageously or wantonly vile, horrible, and inhuman” aggravating circumstance too vague under Eighth Amendment).

Godfrey v. Georgia, 446 U.S. 420 (1980) (holding Georgia Supreme Court construction of “outrageously or wantonly vile, horrible or inhuman” aggravating circumstance too broad and vague, not sufficiently limiting to satisfy Eighth Amendment).

Paul J. Heald, Medea and the Un-Man: Literary Guidance in the Determination of Heinousness Under Maynard v. Cartwright, 73 Tex. L. Rev. 571 (1995) (illustrating methodology that literary texts may be applied to interpreting concrete legal problems, bringing Dante, C.S. Lewis, and Euripides to bear on development of ethical framework for determining what constitutes “heinous, atrocious, or cruel,” as addressed by Supreme Court in Maynard v. Cartwright).

Barber v. Tennessee, 513 U.S. 1184 (1995) (mem.) (denying certiorari on other grounds, but noting “wicked or morally corrupt” is “plainly impermissible” because such a state of mind is characteristic of every murder, citing Godfrey and Maynard).

Richmond v. Lewis, 506 U.S. 40 (1992) (holding Arizona’s “especially heinous, cruel, or depraved” aggravating factor unconstitutionally vague at time of petitioner’s resentencing).

Espinosa v. Florida, 505 U.S. 1079 (1992) (holding Florida’s “especially heinous, wicked, evil, atrocious or cruel” aggravating circumstance is unconstitutional where no limiting instruction or definition applied to it).

Stringer v. Black, 503 U.S. 222 (1992) (holding Mississippi’s “especially heinous, atrocious, or cruel” aggravating circumstance unconstitutionally vague without further limiting instruction).

Shell v. Mississippi, 498 U.S. 1 (1990) (per curiam) (holding trial court’s instruction limiting “especially heinous, atrocious or cruel” aggravating factor insufficient to cure vagueness; instruction nothing more than dictionary definitions, did not limit population of those to be punished under capital statute).

Lewis v. Jeffers, 497 U.S. 764 (1990) (holding Arizona state court construction of “especially heinous . . . or depraved” not unconstitutionally vague, following Walton).  

Walton v. Arizona, 497 U.S. 639 (1990) (holding Arizona’s “especially heinous, cruel or depraved” aggravating circumstance constitutional because trial judge, not jury, makes sentencing determination and Arizona courts have sufficiently narrowed the definition of this factor to circumstances where victim suffers mental anguish or physical abuse), overruled in Ring v. Arizona, 536 U.S. 584 (2002), to the extent that Walton allowed a sentencing judge, sitting without a jury, to find an aggravating circumstance necessary for the imposition of the death penalty).

Maynard v. Cartwright, 486 U.S. 356 (1988) (holding that in the absence of limiting construction by state courts, Oklahoma statutory aggravating circumstance of “especially heinous, atrocious or cruel” did not adequately channel jury discretion and was unconstitutionally vague and overbroad).

Proffitt v. Florida, 428 U.S. 242, 255–56 (1976) (plurality opinion) (stating “heinous, atrocious or cruel” aggravating circumstance provides adequate guidance to sentencing bodies where it is interpreted as applying only to “the conscienceless or pitiless crime which is unnecessarily torturous to the victim”).

Valerio v. Crawford, 306 F.3d 742 (9th Cir. 2002) (en banc) (holding that “depravity of mind” aggravating-circumstances jury instruction was unconstitutionally vague under Godfrey v. Georgia and that state appellate court cannot cure such error under Walton v. Arizona, by applying a narrowing construction to the instruction to a de novo finding of the facts when the penalty phase factfinder has been a jury; also holding that, even if the Walton procedure were available, the Nevada Supreme Court failed to provide “close appellate scrutiny” and therefore failed to cure the error caused by the unconstitutionally vague jury instruction and the error was not harmless), cert. denied, 538 U.S. 994 (2003).

Gerlaugh v. Stewart, 129 F.3d 1027, 1043 (9th Cir. 1997) (rejecting vagueness challenge to Arizona’s “heinous, cruel or depraved” aggravating circumstance because petitioner’s final sentencing occurred after the Arizona Supreme Court sufficiently construed aggravator), cert. denied, 525 U.S. 903 (1998).

Ceja v. Stewart, 97 F.3d 1246 (9th Cir. 1996) (upholding Arizona Supreme Court’s narrowing construction re: “additional violence” of facially vague “heinous, cruel or depraved” aggravating circumstance).

McKenna v. McDaniel, 65 F.3d 1483 (9th Cir. 1995) (holding jury instruction re: Nevada “depravity of mind” aggravating factor was unconstitutionally vague), cert. denied, 517 U.S. 1150 (1996).

Wade v. Calderon, 29 F.3d 1312 (9th Cir. 1994) (outlining procedure for federal court in deciding whether aggravating factor violates Eighth Amendment: (1) determine whether statutory language defining the factor is itself too vague to guide sentencer, (2) if so, determine whether state courts have construed vague terms to provide guidance), cert. denied, 513 U.S. 1120 (1995).

Clark v. Lewis, 1 F.3d 814 (9th Cir. 1993) (holding Arizona’s “depraved” aggravating factor not unconstitutionally applied because court narrowed it by stating “depraved” referred to “mental state and attitude of perpetrator as reflected in words and actions”).

Chaney v. Lewis, 801 F.2d 1191, 1195 (9th Cir. 1986) (following Walton), cert. denied, 481 U.S. 1023 (1987).

Fetterly v. Paskett, 744 F. Supp. 966 (D. Idaho 1990) (holding narrowing instruction on Idaho’s “heinous, atrocious and cruel” aggravating factor cures vagueness).  

Beam v. Paskett, 744 F. Supp. 958 (D. Idaho 1990) (holding Idaho’s “especially heinous, atrocious or cruel, manifesting exceptional depravity” aggravating circumstance not impermissibly vague on its face and sufficiently narrowed by state supreme court decisions), rev’d on other grounds, 966 F.2d 1563 (9th Cir. 1992).

Richard N. Garnett, Note, Depravity Thrice Removed: Using the “Heinous, Cruel, or Depraved” Factor to Aggravate Convictions of Nontriggermen Accomplices in Capital Cases, 103 Yale L.J. 2471 (1994) (exploring peculiar confluence of constitutional standards governing execution of nontriggermen with those controlling operation and construction of statutory aggravating factors).

Jonathan Kennedy, Florida’s “Cold, Calculated & Premeditated Aggravating Circumstance in Death Penalty Cases,” 17 Stetson L. Rev. 47 (1987) (reviewing “cold, calculated and premeditated” aggravating circumstance and arguing it is unconstitutional as applied).

Terrill Pollman, Note, Maynard v. Cartwright: Channeling Arizona’s Use of the Heinous, Cruel, or Depraved Aggravating Circumstance to Impose the Death Penalty, 32 Ariz. L. Rev. 193 (1990) (examining history underlying guidelines Supreme Court has established for constitutionally permissible application of “heinous, cruel or depraved” aggravating circumstance provisions).

Richard A. Rosen, The “Especially Heinous” Aggravating Circumstance in Capital Cases–The Standardless Standard, 64 N.C. L. Rev. 941 (1986) (examining “especially heinous” aggravating circumstance in light of Eighth Amendment guided discretion and Fourteenth Amendment due process, concluding that overbroad and inconsistent application undermines limits on discretion).

Proffitt v. Florida, 428 U.S. 242, 255–58 (1976) (holding question whether crime was “conscienceless or pitiless crime which was unnecessarily torturous to victim” was not unconstitutionally vague).

Gregg v. Georgia, 428 U.S. 153 (1976) (finding “torture, depravity of mind” aggravating circumstance not unconstitutional on face).

Wade v. Calderon, 29 F.3d 1312 (9th Cir. 1994) (finding torture aggravating circumstance unconstitutionally vague without limiting construction re: intent; instructions at guilt phase do not spill over to cure vagueness at sentencing), cert. denied, 513 U.S. 1120 (1995).

Deutscher v. Whitley, 884 F.2d 1152, 1162–63 (9th Cir. 1989) (holding while “depravity of mind” factor of Nevada’s “torture, depravity of mind or mutilation of the victim” aggravating circumstance is unconstitutionally vague, “torture” and “mutilation” are sufficiently clear), vacated on other grounds, 500 U.S. 901 (1992).

Battle v. Delo, 19 F.3d 1547 (8th Cir. 1994) (finding “depravity of mind” aggravating circumstance without further definition unconstitutionally vague, but “some kind of torture or serious physical abuse” is sufficient limiting instruction).

Ellen F. Beckman, Note, Mental Illness as an Aggravating Circumstance in Capital Sentencing, 89 Colum. L. Rev. 291 (1989) (arguing that sentencer in capital punishment proceeding cannot constitutionally consider aggravating circumstances stemming from defendant’s mental illness).

Arave v. Creech, 507 U.S. 463 (1993) (reversing Ninth Circuit and holding Idaho supreme court’s consistent limiting construction of “utter disregard for human life” meets constitutional standards, not vague as applied).

Paradis v. Arave, 20 F.3d 950 (9th Cir. 1994) (following Creech, reversing earlier position that Idaho’s “utter disregard” aggravating circumstance was unconstitutionally vague as applied), cert. denied, 513 U.S. 1117 (1995).

Beam v. Paskett, 3 F.3d 1301 (9th Cir. 1993) (following Creech, reversing earlier position that Idaho’s “utter disregard” aggravating circumstance was unconstitutionally vague as applied), cert. denied, 511 U.S. 1060 (1994).

Cheri L. Bugajski, Criminal Law–Capital Punishment–Aggravating Circumstances–Clear and Objective Standard, 32 Duq. L. Rev. 347 (1994) (analyzing Arave v. Creech).

Jonah J. Goldstein, Note, Arave v. Creech: Utter Disregard for the “Clear and Objective” Standard for Death Sentencing, 71 Denv. U. L. Rev. 509 (1994) (critiquing Arave v. Creech, arguing it misapplies Walton and undermines precedent that aggravating circumstance must make reference to facts capable of objective determination).

Delo v. Lashley, 507 U.S. 272 (1993) (ruling petitioner not entitled to instruction at sentencing phase that he or she was presumed innocent of other unadjudicated crimes that were being considered as aggravating factors by the jury).

Williams v. Vasquez, 817 F. Supp. 1443 (E.D. Cal. 1993) (holding lack of jury instruction enumerating elements of offenses or standard of proof which must be met before jury can consider those offenses does not render California’s aggravating factor allowing jury to weigh unadjudicated criminal conduct unconstitutionally vague).

Dawson v. Delaware, 503 U.S. 159 (1992) (holding evidence of defendant’s membership in white racist group irrelevant to capital sentencing; no per se constitutional barrier to admissibility of evidence re: beliefs and associations, but if irrelevant to sentencing, then not admissible).

Zant v. Stephens, 462 U.S. 862 (1983) (noting “factors that are constitutionally impermissible or totally irrelevant to sentencing process, such as race, religion, or political affiliation of defendant”; aggravating circumstance is invalid if “it authorizes a jury to draw adverse inference from conduct that is constitutionally protected”).

Beam v. Paskett, 3 F.3d 1301 (9th Cir. 1993) (holding evidence of defendant’s prior nonviolent consensual and involuntary sexual history in support of “continuing threat” aggravating circumstance violates Eighth Amendment because serves no retributive purpose), cert. denied, 511 U.S. 1060 (1994).

Johnson v. Mississippi, 486 U.S. 578 (1988) (holding Eighth Amendment requires reexamination of death sentence based in part on aggravating circumstance of prior conviction which was later declared invalid; error extended beyond mere invalidation of aggravating circumstances since jury was allowed to consider evidence which was materially inaccurate).

Gretzler v. Stewart, 112 F.3d 992, 1004–5 (9th Cir. 1997) (approving use of prior out-of-state conviction as aggravator, even though the California judge did not accurately inform petitioner, who was facing capital murder charges in Arizona when he pled to nine counts of murder in California, of the consequences in Arizona of his plea in California), cert. denied, 522 U.S. 1081 (1998).

Campbell v. Kincheloe, 829 F.2d 1453, 1461 (9th Cir. 1987) (holding use of prior conviction improper if (1) prior conviction unconstitutional and (2) sentence enhanced in reliance on this conviction), cert. denied, 488 U.S. 948 (1988).

Arnett v. Ricketts, 665 F. Supp. 1437, 1444 (D. Ariz. 1987) (holding allowance of hearsay evidence of prior convictions to prove aggravating circumstance of prior conviction constitutes fundamental error violating defendant’s due process rights).

LaGrand (Karl) v. Stewart, 133 F.3d 1253 (9th Cir.) (finding Arizona pecuniary gain aggravating factor not arbitrary or capricious), cert. denied, 525 U.S. 971 (1998).  

Poland v. Stewart, 117 F.3d 1094 (9th Cir. 1997) (holding Arizona Supreme Court ruling that pecuniary gain aggravating circumstance applies to one who kills in expectation of financial gain as well as to parties involved in a murder for hire is not an unforeseeable judicial enlargement of sentence), cert. denied, 118 U.S. 1533 (1998).  

Woratzeck v. Stewart, 97 F.3d 329 (9th Cir. 1996) (holding pecuniary gain aggravating factor does not apply to all persons convicted of robbery felony-murder; sentencer’s discretion is adequately channeled), cert. denied, 520 U.S. 1173 (1997).

Tuilaepa v. California, 512 U.S. 967 (1994) (holding following sections of California Penal Code § 190.3 not unconstitutionally vague: (1) “circumstances of crime,” (2) “presence or absence of criminal activity involving use or attempted use of force or violence,” (3) defendant’s age at time of crime).

Jeffries v. Blodgett, 5 F.3d 1180, 1194 (9th Cir. 1993) (holding Washington’s aggravating circumstance addressing whether murder was committed to conceal the commission of a crime and whether the murder involved more than one victim and was the common scheme of the defendant are not unconstitutionally vague), cert. denied, 510 U.S. 1191 (1994).