WAITING ON DEATH ROW : Inmates’ Cellblock Ordeals Have Been Dragging On, but the State’s New Supreme Court Justices May Shorten Theme : What ‘Special Circumstances’ Qualify a Killer for Death Row

Not everyone convicted of first-degree murder in California is sentenced to death. Capital punishment is reserved for cases involving special circumstances.

Under California law, those special circumstances include murder during the commission of a felony, such as robbery or rape; multiple murder; murder for hire or other financial gain; murder of a police officer, federal agent or fireman; murder by torture; murder by an explosive, and murder committed after lying in wait.

The most common special circumstance is murder during the commission of a felony. It also can be the most confusing from a legal perspective.

The California Supreme Court has ruled that the felony alleged must be the primary motive for the murder to qualify the crime as a capital offense. For example, if a defendant killed his victim for revenge and then took his wallet as an afterthought, the robbery would not qualify as a special circumstance making the murder a death-penalty case.

A first-degree murder conviction without a special circumstance carries a sentence of 25 years to life in prison. If a jury finds special circumstances existed, the trial goes into a penalty phase.

The jury then must return a verdict of death, or life in prison without parole. The exception is when prosecutors seek special circumstances in an attempt to elevate a defendant’s sentence to life without parole but choose not to seek the death penalty.

If a jury returns a death verdict, the final sentencing decision at the trial level rests with the judge. The judge cannot upgrade to death a verdict calling for life without parole. But the judge does have the authority to reduce a jury’s death verdict and sentence the defendant life without parole, or even less.

However, since the new California death-penalty law was passed by the Legislature in 1977, no Orange County judge has reduced a jury’s death verdict.