THE PEOPLE, Plaintiff and Respondent, v. ALBERT GREENWOOD BROWN, JR., Defendant and Appellant.
No. S010071
Supreme Court of California
Dec. 2, 1993.
Appellant‘s petition for a rehearing was denied February 2, 1994.
6 Cal. 4th 322 | 24 Cal. Rptr. 2d 710 | 862 P.2d 710
Fern M. Laethem, State Public Defender, under appointment by the Supreme Court, Steffan Imhoff, Nancy Aspaturian, Jessica K. McGuire and Musawwir Spiegel, Deputy State Public Defenders, for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Harley D. Mayfield and Gary W. Schons, Assistant Attorneys General, Robert M. Foster, Louis R. Hanoian, Pat Zaharopoulos and M. Howard Wayne, Deputy Attorneys General, for Plaintiff and Respondent.
LUCAS, C. J.—In 1982, defendant was convicted of rape and first degree murder with special circumstances, and sentenced to death. We affirmed the guilt judgment and special circumstances findings, but reversed the penalty judgment. (People v. Brown (1985) 40 Cal.3d 512 [220 Cal.Rptr. 637, 709 P.2d 440] [Brown I].) The United States Supreme Court granted certiorari, and thereafter reversed the judgment of this court and remanded for further proceedings. (California v. Brown (1987) 479 U.S. 538, 543 [93 L.Ed.2d 934, 941, 107 S.Ct. 837].) Our opinion on remand found no error requiring retrial of the guilt or penalty issues, but because the trial court erred in its ruling on defendant‘s automatic motion to modify the verdict (
Thereafter, defendant moved unsuccessfully to challenge the trial judge for cause (
Defendant‘s primary claim on appeal is that he was denied due process because the judge who presided over the hearing was not impartial. The People assert defendant has no statutory or constitutional right to raise that issue on appeal. As explained below, we conclude section 170.3(d) does not bar appellate review of defendant‘s due process challenge. We also conclude, however, that the record does not support defendant‘s due process challenge to the impartiality of the hearing judge.
I. Facts and Procedure
The facts are set out in our original opinion. (40 Cal.3d at pp. 522-525.) For purposes of this appeal, it is sufficient to note that defendant kidnapped, raped, and strangled to death a 15-year-old girl who was walking to school. A jury returned verdicts of guilt on the charges, and found alleged special circumstances to be true. At the penalty trial, the prosecution introduced evidence of defendant‘s prior rape of another young girl. Defendant presented mitigating expert testimony concerning his tragic upbringing and childhood. The jury returned a verdict of death.
Thereafter, the court heard argument on defendant‘s automatic motion under
At defendant‘s initial hearing under
Accordingly, Brown II, supra, 45 Cal.3d at page 1264, held: “We find no error requiring retrial of the issues of guilt or penalty. However, we must
In mid-February 1989, about a month before the scheduled hearing on remand from this court, defendant filed a declaration of disqualification “for cause” against Judge Mortland under
Counsel for defendant, Monica Knox, declared under penalty of perjury: “On January 25, 1989, Judge Mortland telephoned the investigator engaged by defense counsel and inquired into the investigation being pursued, specifically in regards to interviews with jurors; Judge Mortland told the investigator that jurors did not have to talk, that he would talk to Judge Macomber about authorizing funds for such an investigation, that he believed there was no need for juror interviews, and that he believed such an investigation was a waste of taxpayers’ money. . . .
“Later on the afternoon of January 25, 1989, I was contacted by telephone by Garry Raley, Assistant Court Executive Officer; Mr. Raley advised me that he was contacting me pursuant to Judge Mortland‘s instruction and that Judge Mortland wanted to know who had authorized contact with the jurors; I explained that no one had expressly authorized contact with the jurors but that Judge Macomber had authorized funds for an investigation and juror contact was part of that investigation; Mr. Raley said that Judge Mortland wanted to know what I was investigating; I responded that, with all due respect, I believed my investigation was confidential and I was under no legal obligation to reveal its details;
“On January 26, 1989, Judge Mortland contacted me personally by telephone; he asked what I was doing having an investigator contact jurors; I
“On January 26, 1989, a juror who had previously voluntarily agreed to be interviewed by my investigator cancelled the meeting saying she was no longer willing to be interviewed; she did state that between setting up the appointment and cancelling it she had spoken with Judge Mortland. . . .”2
Judge Mortland filed an answer denying prejudice. (
“While this matter was pending around late January or early February 1989, my bailiff received several calls from some of the jurors advising that an investigator was seeking to interview them and ask[ing] if they had to talk to that person. I told my bailiff to tell the jurors that they did not have to talk to any investigator and had a right not to do so.
“At one point I talked directly to one of the jurors on this matter of their right not to talk to the investigator. One of the jurors said that the investigator advised that if an interview were not given, he, the investigator, would be back with a court order.
“On one occasion I talked directly to a defense investigator who tried to explain that interviewing the jurors was necessary, and I tried to explain that it was not only not necessary, but was totally unnecessary and improper in that the only issue remaining was for the trial court to consider and either grant or deny the defense automatic motion to reduce the death penalty to life without the possibility of parole under
Finally, Judge Mortland recited our remand directions in Brown II (quoted, ante, pp. 327-328), and stated his understanding, based thereon, that “the functioning of the jurors was totally concluded” in this case.
The parties stipulated that Judge (now Justice) Robert Timlin decide the disqualification motion. (
In early April 1989, Judge Timlin, after considering the above described declarations and our remand instructions in Brown II, ruled Judge Mortland was not disqualified from presiding over the hearing on defendant‘s statutory modification motion. Judge Timlin found “the conduct and communications by the Judge . . . do not suggest indirectly or directly any bias or prejudice by him towards defendant, defendant‘s present attorney and her representatives, or towards any of the issues remaining to be resolved and determined in this case.”3
Defendant immediately challenged this determination by filing in the Court of Appeal a petition for a writ of mandate and request for stay of the modification hearing, as required by
After counsel presented their arguments, the court recited various items of mitigating evidence (e.g., testimony of family members that defendant was kind and nonviolent, and expert testimony that although defendant suffered “extreme sexual maladjustment,” he would not be a danger in prison). The court contrasted that evidence with the aggravating circumstances of the crime: the kidnapping, rape, and brutal murder of a 15-year-old girl, and the prior rape of another young girl, for which defendant was paroled from state prison only seven months before committing the present offense. Based on this evidence, the court found “the aggravating circumstances justify imposition of the death penalty . . . [and that] they outweigh the mitigating, and justify the jury‘s verdict . . . .” The court denied the motion for modification of verdict, and entered a new judgment of death.
While preparing the record for certification on the automatic appeal of Judge Mortland‘s denial of the modification motion, defendant moved the trial court to order “correction” of the record in various respects. He sought, inter alia, to “settle” the record by incorporating off-the-record conversations involving Judge Mortland that allegedly supported defendant‘s disqualification claim. He also sought a hearing before an out-of-county judge, to settle an alleged factual dispute concerning when Judge Mortland was served with the disqualification motion. (See post, 6 fn. 6.) The trial court denied these requests, and defendant sought an order from this court directing that those “corrections” and “settlements” be made.
We denied defendant‘s motion. We rejected the request to settle the record with off-the-record conversations relating to the disqualification ruling because they were not part of the record before Judge Timlin when he ruled on
II. Analysis
A. Judicial Bias
Defendant asserts his right to due process of law under the state and federal Constitutions was violated because he was “sentenced to death by a judge who was not impartial.” (See, e.g., Arizona v. Fulminante (1991) 499 U.S. 279, 309 [113 L.Ed.2d 302, 331, 111 S.Ct. 1246] [trial by judge who is not fair or impartial constitutes “structural defect[] in the constitution of the trial mechanism” and resulting judgment is reversible per se]; see also Gomez v. United States (1989) 490 U.S. 858, 876 [104 L.Ed.2d 923, 939-940, 109 S.Ct. 2237]; Gray v. Mississippi (1987) 481 U.S. 648, 668 [95 L.Ed.2d 622, 639-640, 107 S.Ct. 2045] [“impartiality of the adjudicator goes to the very integrity of the legal system“]; Rose v. Clark (1986) 478 U.S. 570, 579, fn. 7 [92 L.Ed.2d 460, 471, 106 S.Ct. 3101]; Tumey v. Ohio (1927) 273 U.S. 510, 535 [71 L.Ed. 749, 759, 47 S.Ct. 437, 50 A.L.R. 1243] [“No matter what the evidence was against him, he had the right to have an impartial judge.“].) His challenge is based exclusively on the record
As noted above,
In Hull, supra, 1 Cal.4th 266, we concluded this provision governs both for cause (
Defendant asserts the statute is unconstitutional insofar as it purports to bar appellate review of his due process claim. The People, in response, suggest we resolved this issue against defendant‘s view in Hull, supra, 1 Cal.4th 266. As we shall explain, we do not interpret the statute to bar appellate review of defendant‘s due process claim, and we conclude that Hull, supra, does not resolve whether defendant may present his due process claim on appeal.
As noted above, the high court has made it clear that a defendant has a due process right to an impartial judge, and that violation of this right is a fatal defect in the trial mechanism. In view of this established federal constitutional authority, to foreclose appellate attack on the fundamental constitutional integrity of the judgment would be a radical and extreme step. It
We believe it is unlikely that the Legislature, acting in good faith and having considered the issue, would have intended to bar the appellate claim that a final judgment is constitutionally invalid for bias. By the same token, we believe that if the Legislature intended such a result, we would find evidence that the problem was carefully examined and consciously resolved.
Accordingly, all presumptions are against such a construction. Any and all reasonable doubts should be resolved in favor of preserving fundamental constitutional claims on appeal. Therefore, we will not find statutory foreclosure of such a claim unless that result is compelled by the statute‘s plain language or other conclusive indicia of specific legislative intent.
There is no such evidence here.
Nor are we aware of any other conclusive evidence that the Legislature intended to bar appellate review of the due process claim raised in this case. In this regard, we have consulted the “Legislative Intent Service” history of
As suggested above, an additional ground informs our construction of
These factors lead us to construe the statute as applied to defendant‘s claim as follows:
Our conclusion does not alter our construction of
As noted above, the statutory ground on which defendant in this case initially relied to challenge Judge Mortland—
Although defense counsel might have believed that Judge Mortland‘s ex parte communications suggested possible prejudice, and although we do not approve of Judge Mortland‘s conduct in this regard, we agree with the conclusion of Judge Timlin that Judge Mortland‘s conduct did not rise to a level requiring disqualification. Under the circumstances of this case, we conclude a reasonable person “aware of the facts” of the case—and particularly, the limited nature of a
As noted above, in a hearing conducted under
The record does not establish that the trial court read and considered the probation report before ruling on the motion.14 In any event, assuming the court read and considered the report, defendant cannot show prejudice. In Lewis, supra, we reversed for a new
In People v. Ramirez (1990) 50 Cal.3d 1158, 1201-1202 [270 Cal.Rptr. 286, 791 P.2d 965], the trial court stated it read the probation report, and “briefly adverted” to some facts mentioned in the report. Despite the court‘s admitted error, we found, “the court‘s comments as a whole indicate that, unlike the situation in People v. Lewis . . . , those incidents did not play a significant role in the court‘s denial of the application. . . . Under these circumstances, we cannot say that there is a reasonable possibility that the court‘s improper consideration of the probation report affected its section 190.4(e) ruling.” (Id., at pp. 1201-1202.)
As noted above, in this case, unlike Ramirez, supra, it is not apparent that the court read and considered the probation report. In any event, in view of
C. Age as a Sentencing Factor
Although the court did not refer to age in its reasons denying modification, defendant asserts the judgment must be reversed because the prosecutor‘s argument invited the court to consider age as an unconstitutionally vague aggravating sentencing factor. We rejected a substantially identical constitutional claim in People v. Tuilaepa (1992) 4 Cal.4th 569 [15 Cal.Rptr.2d 382, 842 P.2d 1142] (cert. granted Dec. 6, 1993, ___ U.S. ___ [126 L.Ed.2d 563, 114 S.Ct. 598]), on the ground that
Defendant alleges the court read from a prepared statement when it denied his modification motion, and infers that the court must have prejudged the application before hearing counsel‘s arguments. Assuming the court did in fact read from a prepared statement, there was no error. Nor would it demonstrate that the court arrived at its decision before the hearing. We addressed and rejected a substantially identical claim in People v. Hayes (1990) 52 Cal.3d 577, 645 [276 Cal.Rptr. 874, 802 P.2d 376], and adhere to our Hayes analysis in this case as well. As we stated in Hayes: “We find nothing objectionable in the court‘s studying the merits of a motion in advance of the hearing and reaching a tentative conclusion as to how the motion should be resolved. Indeed, formulating and announcing tentative rulings in advance of argument is a common practice in law and motion matters. Nor do we see anything improper in the court‘s having reduced its tentative ruling to writing. To do so does not mean that the court is unalterably bound by the writing or that it will not amend or even discard the writing if counsel‘s arguments persuade the court that its tentative views were incorrect. . . .” (52 Cal.3d at p. 645.)
Defendant nevertheless insists that in order to afford him an opportunity for “meaningful” oral argument, a court should refrain from committing its tentative views to writing before the hearing. He asserts his own hearing “was about as meaningful as permitting a defendant to give a summation to a jury but only after the jury had reached its verdict.”
We reject the analogy and the implication. Based on this court‘s own practice and experience (see Cal. Supreme Ct., Internal Operating Practices & Proc., VI, Calendars and Calendar Memoranda [West‘s Cal. Rules of Court (State ed. 1992 rev.) p. 955]), we know that tentative written determinations prepared prior to argument are both helpful to the court in collecting and organizing its thoughts, and not infrequently altered or even reversed after argument and further reflection. The suggestion that a defendant receives a “less meaningful” hearing when the court prepares a tentative opinion is simply untenable.
We reject defendant‘s challenges to the court‘s ruling on the
Kennard, J., Arabian, J., Baxter, J., and George, J., concurred.
MOSK, J.—I concur in the judgment. After review, I have found no reversible error or other defect.
I agree with the majority as to the cognizability on appeal of defendant‘s claim that the judge who sentenced him to death was not impartial, in violation of the due process clauses of the Fourteenth Amendment to the United States Constitution and
My reasons are as follows.
The Legislature has enacted a comprehensive statutory scheme, which is codified as chapter 3 of title 2 of part 1 of the Code of Civil Procedure, sections 170 through 170.8, entitled, Disqualifications of Judges. (See generally People v. Hull (1991) 1 Cal.4th 266, 269-275 [2 Cal.Rptr.2d 526, 820 P.2d 1036].) It defines certain statutory conditions under which a judge is declared “disqualified,” i.e., “deprived of the power, right or privilege” to act (id. at p. 272). It establishes a procedure whereby a party may move to disqualify a judge, either for cause or peremptorily. In
In section 170.3(d), the Legislature sought to preclude appellate review of the “determination of the question of the disqualification of a judge,” i.e., the ruling on the underlying motion. Hence, it aimed to prevent an appellate court from passing on the question whether the judge under challenge was in fact “deprived of the power, right or privilege” to act (People v. Hull, supra, 1 Cal.4th at p. 272) under one or more of the statutory conditions. It did not even purport to bar a party from claiming on appeal that a judge who participated in his case was not impartial.
It follows that defendant is not precluded by section 170.3(d) from claiming that Judge J. William Mortland, who sentenced him to death, was not impartial. He is merely barred by that provision from attacking Judge (now Justice) Robert J. Timlin‘s earlier denial of his motion to disqualify
In my view, defendant does not establish his partiality claim against Judge Mortland. His failure, however, should not be taken to validate what transpired. Put simply, the judge‘s ex parte communications with counsel and counsel‘s investigator were altogether improper. They cannot, and must not, be condoned.
In conclusion, having found no reversible error or other defect, I concur in the judgment.
Panelli, J., concurred.