Furthermore, the universe of cases that may be pursued as capital crimes in California is particularly broad because California defines felony murder simpliciter as being death-eligible. Cal. Penal Code §190.2(a)(17). Worse, Georgia law does not even provide an “abstract proposition”or a “starting principle,” Bush, 531 U.S. at 106, as to how local prosecutors ought to maketheselife-and-death decisions.

Under the Briggs Initiative, the majority of the special circumstances for the actual killer, including the felony-murder circumstances, have no homicide mens rea requirement. See Cal. Pen. Code § 190.2(a)(17); see also People v. 303 A/723797971 Anderson, 43 Cal. 3d 1104 (1987). The Briggs Initiative expanded death- eligibility for accomplices by eliminating the "personal presence" and "physical aid" requirements generally applicable under the 1977 law. 730.

The high court in Harris, in contrasting the 1978 statute with the 1977 law which the court upheld against a lack-of-comparative-proportionality-review challenge, itself noted that the 1978 law had "greatly expanded" the list of special circumstances. (Harris, 465 U.S. at p. 52, fn. 14.) That number has continued to grow, and expansive judicial interpretations of section 190.2's lying-in-wait special circumstance have made first degree murders that can not be charged with a "special circumstance" a rarity. As we have seen, that greatly expanded list fails to meaningfully narrow the pool of death-eligible defendants and hence permits the same sort of arbitrary sentencing as the death penalty schemes struck down in Furman v. Georgia, supra.

These categories are joined by so many other categories of special-circumstance murderthat the statute now comes close to making every murderereligible for death. The Court should reconsider and overrule its prior precedent and hold section 190.2(a) is so broad that it fails properly to narrow the set of murderseligible for death as required by the Eighth and Fourteenth Amendments. B. The Broad Application of Section 190.3, Factor (a), Violated Appellant’s Constitutional Rights.

21. Because almost all first-degree murders in California fall within the special circumstances enumerated in Penal Code section 190.2, California's individual prosecutors are afforded complete discretion to determine whether to charge special circumstances and seek penalties of death, and the California statutory scheme contains none of the safeguards common to other death penalty sentencing schemes to guard against the 227 arbitrary imposition of death, California's death penalty statute fails to genuinely narrow the class of death eligible murderers in violation of the Eighth and Fourteenth Amendments and permits the imposition of death sentences in an arbitrary and capricious manner. 22.

Had the court knownthat the prosecution would add a speci al circumstanceallegation, the court would have one additional reason to deny the severance motion. Moreover, there was no requirementthat the Luna case betried before any of the other case, so a conviction in any other murder case would have madeappellant eligible for the death penalty for murdering Luna, pursuantto section 190.2, subdivision (a)(2). And contrary to appellant’s assertion, joinder of the charges did not create a capital case as to Luna, because there was already a basis for charging a capital case,i.e., the felony-murderrule.

· (People v. Stanley (1995) 10 Ca1.4th 764,842-843.) This Court should reconsider Stanley and strike down Penal Code section 190.2 and the current statutory scheme as so all-inclusive as to guarantee the arbitrary 228 imposition ofthe death penalty in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. B. The Broad Application of Section 190.3(a) Violated Mr. Rountree's Constitutional Rights.

The death penalty may be imposed only where the defendant has been convictedoffirst degree murder and an enumeratedspecial circumstance has been charged and found true. (§§ 190, subd. (a), 190.2, subd.(a), 190.3, subd. (a).) The offense of second degree murderis not punishable by death. (People v. Thomas (2012) 53 Cal.4th 771, 837.)

(Ring, supra, 536 U.S. at 604.) Penal Code section 190, subd. (a) provides that the punishmentfor first-degree murder is 25 yearsto life, life without possibility of parole (““LWOP”), or death; the penalty to be applied “shall be determined as provided in Sections 190.1, 190.2, 190.3, 190.4 and 190.5.” Neither LWOP nor death can be imposed unless the jury finds a special circumstance(section 190.2).

(People v. Stanley (1995) 10 Cal.4th 764, 842-843.) This Court should reconsider Stanley and strike down Penal Code section 190.2 and the current statutory scheme as so all-inclusive as to guarantee the arbitrary imposition of the death penalty in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. B. The Broad Application of Section 190.3(a) Violated Appellant's Constitutional Rights.