The legislation further meets Avena requirements by providing that the federal court “may conduct an evidentiary hearing if necessary to supplement the record and, upon a finding of actual prejudice, shall order a new trial or sentencing proceeding.” (Id. at § 4(a)(3).) On July 27, 2011, the full Senate Committee on the Judiciary held a hearing on the Consular Notification Compliance Act, under the title of “Fulfilling Our Treaty Obligations and Protecting Americans Abroad.”

(1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Introduction to Crimes, § 24, p. 53.) In People v. Jones (1988) 46 Cal.3d 585, 599, we described the rule of lenity in a way fully consistent with section 4: "The rule of statutory interpretation that ambiguous penal statutes are construed in favor of defendants is inapplicable unless two reasonable interpretations of the same provision stand in relative equipoise, i.e., that resolution of the statute's ambiguities in a convincing manner is impracticable." [{] Thus, although true ambiguities are resolved in a defendant's favor, an appellate court should not 2. “Monopoly,” Parker Brothers, 1935. -8- strain to interpret a penal statute in defendant's favor if it can fairly discern a contrary legislative intent.

) A number of humanrights instruments also provide that a state may not take a person’s life “arbitrarily.” (See, e.g., ICCPR,art. 6; American Convention on Human Rights, art. 4, 1144 U.N.T.S. 123; African Charter on Human and Peoples’ Rights, OAU Doc. CAB/LEG/67/3 rev. 5, 4 EHRR 417, 21 I.L.M. 58, art. 4.) In evaluating “arbitrary arrest and detention”(barred by Art. 9(1) ofthe ICCPR), the Human Rights Committee, relying on drafting history, concluded that “arbitrariness” is not to be equated with “against the law,” but must be interpreted more broadly to include elements of inappropriateness, injustice and lack of -346- predictability.

(Stats. 1995, c. 876 (S.B. 911), § 4.) Thus, none of the statutes cited by the trial court provided the authority to impose a victim restitution order in the present case.

In 1993, the Legislature added felony-murder carjacking and murder perpetrated by means of discharging a firearm from a motor vehicle to section 189. See Stats. 1993, c. 611, §§ 4, 4.5, 6. In 1981, the Legislature, as part of a general rejection of the diminished capacity defense, eliminated two mental state defenses previously available in first- degree murder cases. 1981 Cal. Stat. 404, §§ 2, 7 (codified as amended at Cal.

The Human Rights Committee, the expert body created to interpret and apply the ICCPR, has observed that this phrase must be "read restrictively" because death is a "quite exceptional measure." (Human Rights Committee, General Comment 6(16), ~ 7; see also American Convention on Human Rights, art. 4(2), Nov. 22, 1969, OAS/Ser.L.V/l1.92, doc. 31 rev. 3 (May 3, 1996) ["In countries that have not abolished the death penalty, it may be imposed only for the most serious crimes ...."].) In 1984, the Economic and Social Council of the United Nations further defmed the "most serious crime" restriction in its Safeguards Guaranteeing Protection of the Rights ofThose Facing the Death Penalty. (E.S.C. res. 1984/50; GA Res. 39/118.)