MAURICE JOHN KEENAN, Petitioner, v. THE SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FRANCISCO, Respondent; THE PEOPLE, Real Party in Interest.
Civ. No. 51777
First Dist., Div. Two.
Oct. 30, 1981.
126 Cal. App. 3d 576
M. Gerald Schwartzbach, under appointment by the Court of Appeal, for Petitioner.
No appearance for Respondent.
George Deukmejian, Attorney General, Robert H. Philibosian, Chief Assistant Attorney General, Edward P. O‘Brien and William D. Stein, Assistant Attorneys General, Clifford K. Thompson, Jr., Ann K. Jensen and Morris Lenk, Deputy Attorneys General, for Real Party in Interest.
OPINION
SMITH, J.—Petitioner Maurice Keenan, who is charged with a capital offense, seeks a writ of mandate compelling respondent superior court to grant petitioner‘s motions 1) to discover the prosecution‘s policy regarding the charging of “special circumstances” (
On July 11, 1979, a complaint was filed in which petitioner and codefendant Robert Kelly were charged with murder, burglary, robbery, attempted robbery, and various firearm offenses. (
Discovery was provided to the defense during August and September 1979. A defense criminalist, Charles Morton, examined the murder weapon and clip, the report of Richard Gryzbowski (a police depart-
In March 1980, petitioner‘s court-appointed counsel sought to withdraw as attorney of record. That request was granted by Division Four of this court on July 23, 1980. (Yanowitz v. Superior Court, 1 Civ. 49158.) Thereafter, on October 7, 1980, petitioner‘s present counsel was appointed to represent petitioner.
On January 13, 1981, petitioner moved the trial court for an order directing the prosecution to furnish discovery of the current policy and procedures in the San Francisco District Attorney‘s office with respect to the charging of special circumstances;2 a list of every case prosecuted in which a special circumstance was alleged pursuant to
district attorney‘s office in which a defendant was charged with murder, but the death penalty was not sought, in which robbery, kidnaping, the performance of lewd or lascivious act upon the person of a child under the age of 14, oral copulation, burglary, arson, train wrecking, or a previous conviction for a first or second degree murder was alleged against the same defendant, but in which no special circumstance was alleged;4 a list of every case in which a defendant was charged with murder in which no special circumstance was ever alleged against the defendant, but in which it was known to the district attorney‘s office prior to the disposition of the case that one or more of the facts stated in
On January 21, 1981, petitioner moved the trial court for an order directing the district attorney, inter alia, to release, for a reasonable period of time, to the custody of defense counsel or defense criminalist, Lindberg Miller, all of the physical evidence connected with the charged offenses in this action and to provide defense counsel notice of the particular evidence to be introduced by the prosecution as evidence of aggravating circumstances, pursuant to
I. Petitioner was properly denied discovery of information pertaining to prosecutorial decisions to charge special circumstances in a murder case.
Petitioner seeks to discover information pertaining to the standards, if any, that are applied by the San Francisco District Attorney in
Petitioner begins his argument by citing the well established Murgia rule, rooted in equal protection, that pretrial discovery is available to a defendant to show invidious prosecutorial discrimination in the enforcement of penal statutes. (Murgia v. Municipal Court (1975) 15 Cal.3d 286, 306 [124 Cal.Rptr. 204, 540 P.2d 44]; Griffin v. Municipal Court (1977) 20 Cal.3d 300, 306 [142 Cal.Rptr. 286, 571 P.2d 997].) However, petitioner does not claim invidious discrimination in the instant case. Rather, citing Gregg v. Georgia (1976) 428 U.S. 153 [49 L.Ed.2d 859, 96 S.Ct. 2909] and Furman v. Georgia (1972) 408 U.S. 238 [33 L.Ed.2d 346, 92 S.Ct. 2726], he argues that a standardless prosecutorial charging of special circumstances contravenes the due process clauses of the Fifth and Fourteenth Amendments and the due process clause of
Objective standards are constitutionally mandated in the penalty phase of death penalty cases from the time the jury considers imposition of the death penalty through the time of appellate review. (Gregg v. Georgia, supra, 428 U.S. at p. 198 [49 L.Ed.2d at p. 888].) In Furman v. Georgia, supra, 408 U.S. 238, the United States Supreme Court held that standardless sentencing in death penalty cases violates a defendant‘s right to be free from cruel and unusual punishment. (See id., at p. 240 (conc. opn. of Douglas, J.), pp. 291-295 (conc. opn. of Brennan, J.), p. 306 (conc. opn. of Stewart, J.), p. 310 (conc. opn. of White, J.) [33 L.Ed.2d at pp. 350, 379-382, 388, 390]; see also Gregg v. Georgia, supra, 428 U.S. at pp. 188-189 (opn. of Stewart, Powell and Stevens, JJ.), pp. 220-221 (conc. opn. of White, J.) [49 L.Ed.2d at pp. 883, 900-901].)
Petitioner claims there is no plausible reason for not extending this holding to the district attorney‘s initial decision to charge special circumstances. However, petitioner overlooks the plurality opinion of
In his concurring opinion, Justice White, with whom Chief Justice Burger and Justice Rehnquist joined, reached the same conclusion: “Petitioner‘s argument that prosecutors behave in a standardless fashion in deciding which cases to try as capital felonies is unsupported by any facts. Petitioner simply asserts that since prosecutors have the power not to charge capital felonies they will exercise that power in a standardless fashion. This is untenable. Absent facts to the contrary, it cannot be assumed that prosecutors will be motivated in their charging decision by factors other than the strength of their case and the likelihood that a jury would impose the death penalty if it convicts. Unless
Petitioner‘s argument has been raised in a handful of cases from other jurisdictions and, in each instance, relying upon the above-quoted passages from Gregg, the courts have concluded that the exercise of prosecutorial discretion does not deprive a defendant accused of a capital offense of his constitutional rights. (E.g. Downs v. Florida (Fla. 1980) 386 So.2d 788, 795, cert. den. 449 U.S. 976 [66 L.Ed.2d 238, 101 S.Ct. 387]; State v. Martin (La. 1979) 376 So.2d 300, 311, cert. den. 449 U.S. 998 [66 L.Ed.2d 238, 101 S.Ct. 540]; People ex rel. Carey v. Cousins (1979) 77 Ill.2d 531, 540-543 [397 N.E.2d 809]; State v. Simants (1977) 197 Neb. 549 [250 N.W.2d 881, 888-890], U.S. cert. den. in 434 U.S. 878 [54 L.Ed.2d 158, 98 S.Ct. 231], rehg. den., 434 U.S. 961 [54 L.Ed.2d 322, 98 S.Ct. 496]; State v. Richmond (1976) 114 Ariz. 186 [560 P.2d 41, 50], cert. den. 433 U.S. 915 [53 L.Ed.2d 1101, 97 S.Ct. 2988]; Cade v. State (Ala.Crim.App. 1978) 375 So.2d 802, 825-826; Bodde v. Texas (Tex.Crim.App. 1978) 568 S.W.2d 344, 348; State v. Gallegos (1976) 27 Ariz.App. 538 [556 P.2d 1141, 1142]; see also Spinkellink v. Wainwright (5th Cir. 1978) 578 F.2d 582, 606-609, cert. den. 440 U.S. 976 [59 L.Ed.2d 796, 99 S.Ct. 1548], rehg. den. 441 U.S. 937 [60 L.Ed.2d 667, 99 S.Ct. 2064].)
II. There was no abuse of discretion by the trial court in its order regarding the testing of physical evidence.
The petitioner in the court below sought to examine and scientifically test the physical evidence in the case. The trial court ordered the prosecution to: “allow defense criminalists to inspect, test and examine all physical evidence which was seized during the course of the investigation of this case. However, in order to protect the integrity of said evidence, the evidence shall not be removed from the San Francisco Hall of Justice and the custody of the San Francisco Police Department, and the prosecution may monitor said inspections, testing and examinations by having a representative of the San Francisco District Attorney‘s Office or the San Francisco Police Department present during the course of all inspections, testing and examinations conducted by defense criminalists.”
No one disputes petitioner‘s right independently to test this evidence. However, petitioner objects to that portion of the court‘s order prohibiting the removal of the evidence from police custody and granting authorities the right to monitor any testing by petitioner.
First, petitioner maintains, based upon the declarations of his two forensic experts alleging that they could not attest to the precision of police lab equipment and that they would not be provided with sufficient time and space within which to conduct their tests, that the trial court‘s order effectively undermines his right to test evidence in police custody.
The declarations of his forensic experts, however, were not based upon actual experience but rather upon information and belief. Moreover, petitioner overlooks the clear statement of the court when the order was issued: “I don‘t know the arrangements that are made, but I presume that the evidence is provided in a room and a space provided and equipment is provided. He [the defense expert] can bring his own
This statement from the bench at the time of the issuance of the order complained of makes it clear that the court was committed to protecting petitioner‘s right to test the evidence in question. The court expressed a willingness to facilitate testing under conditions acceptable to petitioner and made its order subject to future modification to accomplish this purpose. Under these circumstances, his argument that the court‘s order undermined his right to test the evidence in question must be rejected.
Next, citing Prudhomme v. Superior Court (1970) 2 Cal.3d 320 [85 Cal.Rptr. 129, 466 P.2d 673] and its progeny, petitioner claims that the monitoring permitted by the order complained of violates his right against self-incrimination. He further maintains that such monitoring will violate his attorney-client privilege.
Since these arguments, like the previous one, are based upon a misunderstanding of the order complained of and an ignorance of statements of the court qualifying its order, it is not necessary to address them on their merits. The record shows that police monitoring was to be limited to the taking of reasonable precautions to prevent the loss or destruction of the evidence, and petitioner was encouraged to seek further assistance from the court to insure that defense testing was conducted in reasonable privacy.8
III. Evidence to be offered in aggravation of sentence
Finally, petitioner contends that the trial court‘s order that, in effect, permits the prosecution to wait until trial to advise petitioner of the specific evidence of aggravating circumstances it intends to offer at the penalty phase of this case violates
Provisions of the penal statute should be construed “according to the fair import of their terms, with a view to effect its objects and to promote justice.” (
Let a peremptory writ of mandate issue directing the trial court to vacate its order denying petitioner‘s request for notice of the particular evidence to be introduced in support of the charge of aggravated circumstances and to issue a new order granting said request by petitioner. In all other respects the petition is denied.
Rouse, Acting P. J., concurred.
MILLER, J.—I respectfully dissent.
The seriousness of charging, and possibly imposing, the death penalty deserves close scrutiny of the entire judicial process, including the initial charging of special circumstances.
It is well established that “an accused in a criminal prosecution may compel discovery by demonstrating that the requested information will facilitate the ascertainment of the facts and a fair trial. [Citations.] The requisite showing may be satisfied by general allegations which establish some cause for discovery other than ‘a mere desire for the benefit of all information which has been obtained by the People in their investigation of the crime.’ [Citations.]” Pitchess v. Superior Court (1974) 11 Cal.3d 531, 536-537 [113 Cal.Rptr. 897, 522 P.2d 305]; see also
It is clear that discriminatory enforcement of the laws may be a valid defense in a case in which the defendant can establish deliberate invidious discrimination by prosecutorial authorities. (Griffin v. Municipal Court, supra, 20 Cal.3d 300, 306, Murgia v. Municipal Court (1975) 15 Cal.3d 286, 290 [124 Cal.Rptr. 204, 540 P.2d 44].) Thus, in criminal cases defendants may pursue discovery with respect to a claim that such prejudice was the moving force behind the proceedings. (Griffin v. Municipal Court, supra, 20 Cal.App.3d at p. 302; Murgia v. Municipal Court, supra, 15 Cal.3d at p. 291; People v. Municipal Court (Street), supra, 89 Cal.App.3d at p. 745.)
In the present action petitioner does not assert that he has been intentionally singled out by the prosecuting authorities on an invidiously discriminatory basis. Rather, he argues that the statute under which he had been charged with special circumstances has not been applied to all individuals who fit within its terms. Relying on Furman v. Georgia (1972) 408 U.S. 238 [33 L.Ed.2d 346, 92 S.Ct. 2726] and Gregg v. Georgia (1976) 428 U.S. 153 [49 L.Ed.2d 859, 96 S.Ct. 2909], petitioner contends that because of the uniqueness of the death penalty, the latter cannot be imposed under sentencing procedures that are applied in an arbitrary and capricious manner. Consistent with that principle the state and its agents are not free to seek death for a capriciously selected random handful of defendants.
“While Furman did not hold that the infliction of the death penalty per se violates the Constitution‘s ban on cruel and unusual punishments, it did recognize that the penalty of death is different in kind from any other punishment imposed under our system of criminal justice. Because of the uniqueness of the death penalty, Furman held that it could not be imposed under sentencing procedures that created a substantial risk that it would be inflicted in an arbitrary and capricious manner.... [¶] Furman mandates that where discretion is afforded a sentencing body on a matter so grave as the determination of whether a
In Gregg, the United States Supreme Court upheld the Georgia legislation enacted in response to Furman. The court discussed several features of the new legislation which eliminated Furman defects. One such provision was a statute charging the Georgia Supreme Court with “responsibility to determine not only whether the evidence supports the jury‘s determination as to special circumstances, but also whether the death penalty ‘was imposed under the influence of passion, prejudice, or any other arbitrary factor,’ and to consider whether that penalty is excessive in comparison with penalties ‘imposed in similar cases, considering both the crime and the defendant.’ (Ga. Code Ann. § 27-2537 (Supp. 1975).) Provision [was] also made for compilation of the data necessary to the last decision, and for preparation by the trial judge of a report regarding factors relevant ... to any disproportionality in the sentence.” (Rockwell v. Superior Court, supra, 18 Cal.3d at p. 432, italics supplied.)
It is obvious from Furman and Gregg that clear and objective standards are constitutionally mandated from the time a jury considers the imposition of the death penalty through the time an appellate tribunal reviews the jury‘s decision. As my colleagues note, the Gregg court found that prosecutorial discretion was not determinative of the issues before the court. (Gregg v. Georgia, supra, 428 U.S. at p. 199 [49 L.Ed.2d at p. 889].) The majority opinion then quotes Justice White who stated in part: “Absent facts to the contrary, it cannot be assumed that prosecutors will be motivated in their charging decision by factors other than the strength of their case and the likelihood that a jury would impose the death penalty if it convicts.” (Italics supplied.) Implicit in this statement is the realization that prosecutorial discretion may be abused if a defendant can show that a prosecutor is exercising
In Murgia the People took the position that, whatever the merits of defendant‘s charges, discovery should be denied since discriminatory enforcement could never constitute a basis for dismissing a criminal action. In rejecting his contention our Supreme Court stated that “a criminal defendant may object, in the course of a criminal proceeding to the maintenance of the prosecution on the ground of deliberate invidious discrimination in the enforcement of the law.” (15 Cal.3d at p. 300.) I see no plausible reason for not applying this same standard for the prosecutor‘s arbitrary charging of special circumstances. Accordingly, evidence of arbitrary and capricious charging of special circumstances by the prosecution may constitute a valid defense in the same way that discriminatory enforcement of the law may be a valid defense in a case in which the defendant establishes deliberate invidious discrimination by prosecutorial authorities.
In petitioner‘s motion to compel discovery of the San Francisco District Attorney‘s records regarding policy and procedures in charging special circumstances petitioner‘s counsel declared that in six and a half years as a criminal attorney he had never heard of any formal or informal standards applicable to the prosecution‘s decision of whether or not to seek the death penalty and to the best of his knowledge no such standards exist. Additionally, he declared that there was at least one case prosecuted by the San Francisco District Attorney‘s office in which defendants were charged with similar crimes to those charged against petitioner but in which no allegations of special circumstances were made. Such averments are sufficient for a prima facie showing of a standardless procedure in charging special circumstances. While at the pretrial stage one cannot determine what evidence petitioner will proffer in support of his claim, traditional principles of criminal discovery require that petitioner be permitted to discover information relevant to his claim.
I also disagree with the majority‘s position regarding the release of physical evidence for defense expert testing. While it first claims that petitioner‘s right to independently test evidence is undisputed, it then supports the trial court‘s order limiting that right.
In the instant case petitioner‘s counsel declared that in another criminal action prosecuted by the San Francisco District Attorney evidence seized by the San Francisco police was released for examination and analysis to an independent forensic scientist retained by the defense. This allegation suggests that petitioner is receiving disparate treatment. Counsel stated his willingness to stipulate that should physical evidence be released to the custody of any of his defense criminalists he would not raise any objection concerning the chain of custody of the evidence. Additionally, he stated he would stipulate that a protective order be issued by the court and agreed to waive any objection regarding the admissibility of prosecution testimony concerning such evidence should the evidence suffer material damage or be lost while in the custody of defense expert.
Given the defense‘s offered stipulations, I cannot see that the prosecutor‘s interest in protecting and preserving the integrity of the evidence outweighs defendant‘s interest in conducting an independent analysis. Real party suggests that petitioner‘s proposed lack of objection to expert testimony should the evidence be lost or destroyed cannot replace the importance of physical evidence at trial. I think not. Bullets, guns and fingerprints, unaccompanied by expert testimony, have little meaning to jurors. Despite real party‘s contrary arguments, petitioner would be bound by said stipulation and since the release of evidence is to petitioner‘s advantage he could not later claim incompetence of counsel.
At the very least, that portion of the trial court‘s order which provides that “the prosecution may monitor said inspections” constitutes a violation of petitioner‘s privilege against self-incrimination on state con-
In light of the foregoing I would grant petitioner‘s motion for release of physical evidence for independent, confidential testing or, at minimum, strike that portion of the trial court‘s order that authorizes prosecution monitoring of defense expert inspections.
A petition for a rehearing was denied November 18, 1981. Miller, J., was of the opinion that the petition should be granted. Petitioner‘s application for a hearing by the Supreme Court was denied February 3, 1982. Bird, C. J., was of the opinion that the application should be granted.
Notes
“With respect to the matters specified in items (a) through (f), indicate in what ways, if any, the policies of the district attorney‘s office in August, 1978, differed from current policies.
“Provide all policy manuals, regulations, guidelines, policy statements, internal memoranda and statements, written and oral, relied on by the district attorney‘s office at any time after November 7, 1978, pertaining to the procedures by which a decision is made whether or not to allege a special circumstance in a prosecution brought under Penal Code section 190 (as approved on November 7, 1978), indicating for each: (a) The author(s) of the material; and (b) The periods of time during which the material was relied upon.”
(a) The case name and court docket number;
(b) The attorney responsible for the prosecution of the case;
(c) The name of each defendant;
(d) The dates of all complaints, informations and indictments filed or brought;
(e) The charges alleged in each of the above against each defendant (or provide copies of the charging papers);
(f) For each defendant, the date upon which a special circumstance was first alleged;
(g) The specific special circumstances alleged against each defendant;
(h) The reasons for the decision(s) to allege special circumstances;
(i) If all special circumstance allegations against a particular defendant were ulti-
(j) If no special circumstances were alleged against a particular defendant in the initial complaint but one or more were subsequently added, indicate: (1) The defendant involved; (2) When the amendments were made; (3) Whey they were made;
(k) If no special circumstances were alleged against one or more defendants, indicate: (1) The defendant involved; (2) The reasons for the decision(s) not to allege any special circumstances;
(l) The disposition of the case, including: (1) The plea, if any; (2) The verdict, if any; and (3) The sentence, if any;
(m) If a sentencing hearing occurred pursuant to Penal Code section 190.3, indicate: (1) Whether the prosecution requested the death penalty or did not request the death penalty; (2) Why the death penalty was or was not requested;
(n) With respect to the decisions referred to in subsections (h), (i)(3), (k)(2) and (m)(2), above, indicate the attorney(s) who participated in making them.
With respect to the decision referred to in items (h), (i)(3), (j)(3), (k)(2), (m)(2), petitioner requested all documents, records, memoranda, notes, minutes, writings, recommendations, communications and statements and summaries of any oral conversations and statements, indicating the reasons for which such decisions were made and who made them.
With respect to the decision referred to in item (e), petitioner requested all documents, records, memoranda, notes, minutes, writings, recommendations, communications and statements and summaries of any oral conversations and statements, indicating the reasons for which such decisions were made and who made them.
With respect to the decision referred to in item (e), petitioner requested all documents, records, memoranda, notes, minutes, writings, recommendations, communications and statements and summaries of any oral conversations and statements, indicating the reasons for which such decisions were made and who made them.