Lead Opinion
Opinion
Pеtitioner Ronald Harold Seaton was sentenced to death after his conviction of murder (Pen. Code, § 187)
The petition for writ of habeas corpus challenges his capital murder conviction on numerous grounds. Four of those pertain to matters that petitioner could not have raised on appeal because of his failure to raise them in the trial court by a pretrial motion.
I
On January 25, 1998, petitioner filed this habeas corpus petition.
In claim U.A., petitioner contends that his murder conviction, the jury’s special circumstance findings, and his sentence of death should be vacated because the prosecutor’s decision to seek the death penalty was motivated by petitioner’s “race [African-American], and/or the publicity attending this case, and/or the lack of guidelines for such matters in the prosecutor’s office, and/or the arbitrary practices of the prosecutors involved in making all decisions regarding Petitioner’s case.”
In claim II.B., petitioner asserts that his death sentence should be vacated because the prosecutor’s decision to seek the death penalty was improperly based on the prosecutor’s inaccurate belief that petitioner had a prior conviction in Michigan for a crime described as “Assault Less than Murder.”
In claim II.C., petitioner argues that his death sentence should be vacated because the prosecutor’s decision to seek the death penalty against him was improperly based on financial and political considerations.
In claim V.A., petitioner contends that his murder conviction, the special circumstance findings, and his death sentence should be vacated because Riverside County deliberately maniрulated the racial composition of its panels of prospective jurors, resulting in a substantial underrepresentation of African-Americans and Hispanics in the panel assigned to his case.
Petitioner alleges that the conduct underlying those claims violated “the First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution and Article I, sections 1, 7, 9, 12, 13, 14, 15, 16, 17, 24, 27, 28, and 30 of the California Constitution, as well as the statutory and decisional law of the State of California and rights under Penal Code section 1473.”
Petitioner did not raise any of these four claims at trial. The Attorney General argues that his failure to do so now bars him from raising them in this habeas corpus proceeding.
II
Penal Code section 1259 provides: “Upоn an appeal taken by the defendant, the appellate court may . . . review any question of law involved in any
The reasons for the rule are these: “ ‘In the hurry of the trial many things may be, and are, overlooked which would readily have been rectified had attention been called to them. The law casts upon the party the duty of looking after his legal rights and of calling the judge’s attention to any infringement of them. If any other rule were to obtain, the party would in most cases be careful to be silent as to his objections until it would be too late to obviate them, and the result would be that few judgments would stand the test of an appeal.’ ” (Sommer v. Martin (1921)
To consider on appeal a defendant’s claims of error that were not objected to at trial “would deprive the People of the opportunity to cure the defect at trial and would ‘permit the defendant to gamble on an acquittal at his trial secure in the knowledge that a conviction would be reversed on appeal.’ ” (People v. Rogers (1978)
For the reasons described above, petitioner was not entitled to raise on appeal any of the four claims at issue here. (See People v. Lucas (1995)
Petitioner argues, however, that because this is not an appeal but a habeas corpus proceeding, the forfeiture rule does not apply. He asserts that whether a claim can be raised in a habeas corpus proceeding depends on the nature of the claim, not on whether it was raised at trial. Citing In re Harris (1993)
In Harris, we first discussed the Waltreus rule (In re Waltreus (1965)
Harris does indeed allow a convicted defendant to file a habeas corpus petition raising claims of fundamental constitutional error even when those claims were previously rejected on appeal, or when the defendant did not, but should have, raised them on appeal. But Harris said nothing about allowing a defendant to raise such claims in a habeas corpus proceeding when no objection was made at trial. A criminal defendant, like any
This does not mean, however, that there is no recourse when a defendant’s rights are violated at trial and defense counsel does not object. If counsel’s omission falls “below an objective standard of reasonableness . . . under prevailing professional norms” (Strickland v. Washington (1984)
Nor is a defendant without recourse when crucial evidence establishing the violation does not come to light until after the trial. A defendant is under no duty to object at trial if the defendant does not know, and could not reasonably discover, the facts supporting the objection. If, for example, the prosecution fails to disclose to the defense any material exculpatory evidence (see Brady v. Maryland (1963)
We now apply these principles to each of the four claims at issue here.
in
A. Claim II.A.
Petitioner contends that his murder conviction, the jury’s special circumstance findings, and his sentence of death should be vacated because the prosecutor’s decision to seek the death penalty was motivated by petitioner’s “race [African-American], and/or the publicity attending this case, and/or the lack of guidelines for such matters in the prosecutor’s office, and/or the arbitrary practices of the prosecutors involved in making all decisions regarding Petitioner’s case.”
Petitioner cites statistics showing that in Riverside County during the years 1978-1990, African-Americans comрrised only 5 percent of the population and were accused of committing only 18 percent of the homicides, but they received 80 percent of the death sentences. Petitioner presents documentary evidence that African-Americans were victims of racial segregation in Riverside County throughout the first half of the 20th century, and that Ku Klux
In essence, claim II.A. consists of two separate allegations: (1) the prosecutor’s decision to seek the death penalty in this case was based on a lack of guidelines in the district attorney’s office, and (2) the prosecution’s decision to seek the death penalty was based on petitioner’s race. With regard to the first contention, petitioner does not allege that it is based on facts discovered after trial. At oral argument, he asserted that the prosecution suppressed evidence pertaining to this claim, but he alleged no faсts in support. Thus, the issue could have been raised at trial, and petitioner’s failure to do so bars its consideration in this habeas corpus proceeding. The second assertion, by contrast, is based on 1990 census figures, California Department of Justice statistics for the years 1978-1990, and information supplied by the American Civil Liberties Union in 1991. Petitioner’s trial began in 1988 and ended in 1989, before these statistics were published. Although petitioner could probably have obtained at trial some of the statistics on which he now relies, we conclude that the claim depends substantially on facts that he was unaware of and could not reasonably have known at trial. Thus, this claim may be raised on habeas сorpus. It is, however, without merit, as explained below.
As noted earlier, the primary evidence on which petitioner relies to support his claim that he was singled out for the death penalty because of his race consists of statistical evidence that between 1974 and 1990 African-Americans, although they were accused of committing only about 18 percent of the homicides, received 80 percent of the death penalties in Riverside County. But petitioner does not mention the percentage of African-Americans among the cases in which the prosecution sought the death penalty. Such a statistic would have greater bearing on determining racial bias in the prosecutor’s charging decision: It is possible, for example, that only 18 percent of the cases in which the prosecutor sought the death penalty involved African-American defendants.
Moreover, even if petitioner had presented more pertinent statistics, such evidence, standing alone, would not establish a claim of racial bias in seeking the death penalty: A purely statistical showing that does not “describe or analyze the facts or circumstances of any case, other than the sentence and
In short, petitioner has not established a prima facie case that the prosecution’s decision to seek the death penalty against him was based on his race.
Petitioner accuses his trial counsel of incompetence for not arguing at trial that the prosecutor’s decision to seek the death penalty was based on a lack of guidelines in the district attorney’s office. As we explained earlier (see ante, pp. 199-200), claims that trial counsel was incompetent are not procedurally barred by a petitioner’s failure to raise them, so petitioner may now raise this claim. Nevеrtheless, it lacks merit. No statute or constitutional provision requires a district attorney to have guidelines on when to seek the death penalty. (See generally People v. Lucas, supra,
B. Claim II.B.
Petitioner asserts his death sentence should be vacated because the prosecutor’s decision to seek the death penalty was based on his incorrect belief that petitioner had a prior conviction in Michigan for a crime described as “Assault Less than Murder.” The information filed in superior court initially alleged this offense as а prior conviction. The prosecution later learned that the Michigan Supreme Court had reversed the conviction, and that on retrial petitioner was found not guilty. The jury at petitioner’s trial never learned of the prior offense. Petitioner has submitted exhibits documenting his acquittal of that offense. He has also provided a declaration from his trial counsel stating that, after the preliminary hearing, the prosecutor who was initially assigned to petitioner’s case mentioned the prior conviction as a reason for rejecting defense counsel’s attempt to “plea bargain” the case.
Petitioner also accuses his trial counsel of incompetence for not raising this claim at trial. Although petitioner is not procedurally barred from asserting counsel’s incompetence (see ante, pp. 199-200), he is not entitled to relief, as discussed below.
We know of no legal authority, and petitioner cites none, holding that a defendant’s statutory or constitutional rights are violated when a prosecutor seeks the death penalty based on a good faith but mistaken belief that the defendant has a prior conviction. Of necessity, prosecutors must base their charging decisions on the information available to them. Occasionally, some of that information may turn out to be incorrect. So long as the inaccurate information does not form the basis for a jury’s imposition of the death penalty, reliance on such information by the prosecutor in seeking the death penalty does not violate the defendant’s statutory or constitutional rights. Therefore, trial counsel here cannot be faulted for not raising at trial the claim at issue.
C. Claim II.C.
Petitioner contends his death sentence should be vacated because the prosecutor’s decision to seek the death penalty against him was improperly based on “financial and political considerations.” In support, petitioner points to an advertisement by the Riverside County Deputy District Attorneys’ Association in a local newspaper while his capital trial was pending. The advertisement sought public support in a contract dispute with the Riverside County Board of Supervisors, and it implied that the board’s refusal to agree to the salary increase sought would undermine the prosecution of serious cases. Petitioner refers to a local newspaper story that was published shortly before his trial and discussed the salary dispute in detail. But the existence of the advertisement and the newspaper article was or should have been known to petitioner at the time of trial. Therefore, he may not now raise this claim on habeas corpus.
In an effort to support his claim of “political considerations,” petitioner alleges that, after petitioner’s trial, Dan Lough, the prosecutor in his case, touted his aggressive record in capital cases during Lough’s campaign for the position of district attorney in nearby San Bernardino County. But petitioner has not alleged any specific statements that Prosecutor Lough made during the campaign. (See In re Swain (1949)
Petitioner also faults his trial counsel for not presenting this claim of “financial and political” motivation by Prosecutor Lough and the attorneys in the prosecutor’s office who were members of the Riverside County Deputy District Attorneys’ Association. Although a claim of ineffective assistance of counsel may be asserted for the first time in a petition for writ of habeas corpus, petitioner’s claim here is lacking in merit. Petitioner has not alleged that it was either Prosecutor Lough or the attorneys in the District Attorneys’ Association who made the decision to seek the death penalty against him, and the decision may well have been made by the Riverside County District Attorney himself. Thus, petitioner has not alleged specific facts demonstrating that his trial counsel performed deficiеntly by not raising this issue at trial.
D. Claim V.A.
Petitioner contends that we should vacate his murder conviction, the special circumstance findings, and his death sentence because Riverside County deliberately manipulated the racial composition of its panels of prospective jurors, thus resulting in a substantial underrepresentation of African-Americans and Hispanics on his panel.
Petitioner points out that 15 months before his trial began, a superior court ruled in People v. Neidiffer & Cruz (Super. Ct. Riverside County, 1987, No. CR-24472) that Riverside County’s jury selection was unconstitutional because it systematically underrepresented Hispanics, young adults, and low-income residents. The court ordered substantial modifications to the county’s jury selection process for that case. (See People v. Jackson (1996)
Petitioner alleges that while his own jury was being selected, jury selection was taking place in another death penalty case (see People v. Niles (1991)
Petitioner relies on a statistical analysis by Dr. Butler, who had also assisted the defense in People v. Neidiffer & Cruz and in People v. Niles. According to Dr. Butler, the Niles jury panel had a substantial overrepresentation of African-American and Hispanic prospective jurors. In petitioner’s case, Dr. Butler found a substantial underrepresentation of African-American and Hispanic prospective jurors. Dr. Butler considered it “inconceivable that two jury panels selected from the same population at the same time by a random process would have such divergent proportions of minorities as did the Niles and Seaton panels . . . .”
All of the evidence on which petitioner relies was either known or could have been known by his attorney аt the time of trial. Although petitioner notes that Dr. Butler did not prepare his study analyzing the two trials until after petitioner’s trial was long over, nothing prevented petitioner from hiring Dr. Butler or some other expert to monitor the jury panel in his case as was done in the Niles case and to conduct at the time of trial the statistical analysis that Dr. Butler performed after the trial. Petitioner also asserts that Riverside County deliberately concealed its alleged manipulation of the jury pool from him, but he alleges no specific facts that, if true, would establish such concealment. Thus, petitioner’s failure at trial to object to the jury panel precludes him from now raising this issue on habeas сorpus.
Petitioner accuses his trial counsel of incompetence for not raising the claim in question at trial. His contention that counsel was incompetent is not procedurally barred (see ante, pp. 199-200), but it lacks merit, as discussed below.
Petitioner argues his attorney should have objected to the panel of prospective jurors on the ground that the manner in which it was selected violated his constitutional right to a jury composed of a fair cross-section of the community. Our first inquiry is whether counsel may have had a legitimate tactical basis for not objecting. Conceivably, because the victim in this case was African-American, as was petitioner, defense counsel might have been of the view that a рanel of prospective jurors with a larger percentage of African-Americans would be more likely to convict defendant of murder and
Nevertheless, petitioner has not shown that had his attorney objected to the composition of the panel of prospective jurors, the trial court would have sustained the objection. “In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a ‘distinctive’ group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.” (Duren v. Missouri (1979)
As we have said in a previous case: “A defendant does not discharge the burden of demonstrating that the underrepresentation [of a racial or ethnic group] was due to systematic exclusion merely by offering statistical evidence of a disparity. A defendant must show, in addition, that the disparity is the result of an improper feature of the jury selection process.” (People v. Burgener (2003)
Our holding in Burgener, supra, 29 Cal.4th at pages 857-858, is dispositive of petitioner’s claim here that his trial counsel should have challenged the panel of prospective jurors. A successful challenge would have required evidence that the jury commissioner was deliberately removing minority jurors from other jury panels and placing them in the Niles jury panel; statistical , evidence of a disparity would not have sufficed. Petitioner does not
Conclusion
The order to show cause is discharged.
George, C. J., Baxter, J., Chin, J., and Moreno, 1, concurred.
Notes
Unless otherwise stated, all further statutory references are to the Penal Code.
The remaining claims in the petition for habeas corpus were not included in our order to show cause. We will dispose of those claims in a separate order to be filed upon the finality of this opinion.
Justice Brown’s concurring opinion asserts that barring claims for failure to object at trial is a “quintessential form-over-substance rule” because a petitioner can simply “recast” the barred claim as one of ineffective assistance of counsеl. (Conc. opn., post, at p. 208.) A petitioner can always claim trial counsel was ineffective for not objecting. Doing so, however, does not “recast” the same claim. Unlike a claim of trial error, a claim of ineffective assistance of counsel based on a failure to object cannot succeed unless the petitioner shows that the failure to object fell “below an objective standard of reasonableness . . . under prevailing professional norms.” (Strickland v. Washington, supra, 466 U.S. at pp. 687-688.) Attorneys often choose not to object for reasons that have no bearing on their competence as counsel. As this court said in an opinion by Justice Brown, “even when there was a basis for objection, ‘ “[w]hether to object to inadmissible evidence is a tactical decision,” ’ ” and “ ' “trial counsel’s tactical decisions are accorded substantial deference (People v. Majors (1998)
For the sake of clarity, we explain why, in certain instances, our orders disposing of habeas corpus claims will not mention the petitioner’s failure to raise the claim at trial.
When we reject a claim on direct appeal, and the defendant thereafter raises the same claim in a habeas corpus petition, we bar the claim because it was raised and rejected on appeal {In re Waltreus, supra,
Our Dixon bar {In re Dixon, supra,
Pеtitioner claims these allegations are documented in exhibit 51 of his petition, but we find nothing in that exhibit substantiating these alleged facts.
Concurrence Opinion
I have previously expressed my view that “creating a Byzantine system of procedural hurdles, each riddled with exceptions and fact-intensive qualifications, only undermines ... the goals they purport to serve: integrity of judgments, finality, and comity.” (In re Gallego (1998)
In this instance, the majority goes one better, formulating a quintessential form-over-substance rule. As the majority perforce acknowledges, any failure to preserve an appealable issue by appropriate objection at trial can—and will—be raised on habeas corpus, recast as a claim of ineffective assistance of counsel. (Maj. opn., ante, at p. 200; see People v. Mendoza Tello (1997)
Expressing no opinion on the substantive merit of the majority’s discussion of forfeiture and lack of objection at trial, I agree petitioner has failed to state a prima facie claim with respect to claims II.A., II.B., II.C., and V.A. and therefore would deny relief and discharge the order to show cause on that basis.
Petitioner’s petition for a rehearing was denied September 29, 2004, and the opinion was modified to read as printed above. George, C. J., did not participate therein.
Concurrence Opinion
I concur in the judgment. I see no need, however, to announce today that the nеwly created procedural bar will apply even to “claims of constitutional error that are ‘clear and fundamental, and strike[] at the heart of the trial process.’ ” (Maj. opn., ante, at p. 199, quoting In re Harris (1993)