(Ring, supra, 530 U.S. at 604.) Section 190, subd. (a), provides that the punishment for first degree murder is 25 years to 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).

An individual convicted offirst-degree murderin cold blood plainly merits a different sentence than an inmate found guilty of kidnapping someone without causing death or serious bodily harm or one whoplaced an obstruction in a railroad path that did not fatally hurt anyone. See Cal. Penal Code § 190(a); § 209(a); § 219. Indeed, the circumstances of Mr. Butler’s own conviction undermine the Board’s suggestion that it can constitutionally render the possibility of parole meaningless for every single one of the 9,315 life prisoners who—as of thefiling of Mr. Butler’s supplemental petition—had served sentences beyond their minimum eligible parole dates. Supp. Habeas Pet. App’x. Ex. Z (Decl. of Austin) J 24.

(Ring, supra, 530 US. at 604.) Section 190, subd. (a) providesthat 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 LWOPnordeath can be imposed unless the jury finds a special circumstance (section 190.2).

§ 190, subd. (a). Neither LWOP nor death can actually be imposed unless the jury finds a special circumstance (§ 190.2), and death is not an available option unless the jury makes the further factual findings required by section 190.3, i.e., that one or more aggravating circumstances exist and that the aggravating circumstance(s) outweigh the mitigating circurn~tances.~~ l7 Section 190, subd. (a) provides as follows: "Every person guilty of murder in the first degree shall be punished by death, imprison-ment in the state prison for life without the possibility of parole, or imprisonment in the state prison for a tern of 25 years to life." l8 The fallacy of the Anderson Court's reasoning in this regard is highlighted by the fact that by the same rationale, a conviction of first degree murder provides a maximum penalty of death; therefore, once the jury has returned a verdict of first degree murder, the finding of any alleged special circumstance does not increase the (continued.. .) ARB Argument XI The fact that Arizona's statutory scheme permitted a judge to make the additional factual findings necessary to impose the death penalty therefore does not distinguish it from California's scheme in way that matters under the Ring analysis.

In California, when ajury convicts a defendantoffirst degree murder, the maximum punishmentis imprisonment for a term of 25 yearstolife. (Pen. Code, § 190, subd.(a) [cross-referencing §§ 190.1, 190.2, 190.3, 190.4 and 190.5].) When the jury returns a verdict offirst degree murder with a true finding of a special circumstance listed in Penal Code section 190.2, the penalty range increasesto either life imprisonment without the possibility of parole or death. (Pen. Code, § 190.2, subd. (a).)

For example, the Penal Code distinguishes between second-degree murder (15-to-life) and first-degree murder (25-to-life), reflecting a judgmentthat these two crimesare not the same in termsofseverity and that they deserve different punishments. See Cal. Penal Code §§ 189, 190(a). Yet, under the Board’s current parole regime, inmates serving these sentences are subject to an identical maximum term (life in prison) that will only be reduced based on a variety of factors, most of which have nothing to do with 17 individual culpability or the commitment offense, and many ofwhich involve subjective assessments of occurrences subsequentto the crime.

Initially, the statutory definition offirst-degree murder encompasses a wide range of homicides and associated punishments. See Cal. Penal Code §§ 189, 190. Furthermore, the case law interpreting the statutes confirms the expansive scope of first-degree murder, thus creating a scheme in which “first and second degree murder 652 are indistinguishable and the choice between them is left to the complete discretion of the jury.”

-294- Under California's statutory scheme, a conviction for first degree murder simpliciter carries a maximum sentence of 25 years to life. (Penal Code section 190.) Ifthe jury finds the defendantguilty of first degree murder andalso finds special circumstancesto betrue,the offense carries a maximum sentence oflife without the possibility ofparole.

" (Ring, supra, 530 U.S. at 604.) Section 190, subd. (a) provides that the punishment for first degree murder is 25 years to 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).

736. Penal Code section 190 neither requires nor forbids inter-case proportionality review. This Court has made it clear, however, that inter- case proportionality review is not permitted in California.