*1 Sept. No. 21630. 1985.] [Crim. PEOPLE,
THE Plaintiff and Respondent, FRIERSON,
LAVELL Defendant and Appellant.
Counsel for
David A. Elden Defendant and Appellant. Kremer, General, Assistant J. Chief John K. Van de Daniel Attorney Kamp, General, T. General, Moore, Edward Assistant Attorney Attorney S. Clark General, Jr., Plaintiff for Attorneys and Susanne C. Fogel, Wylie, Deputy and Respondent.
Opinion
KAUS, J. from a judgment imposing Lavell Frierson appeals Defendant murder with spe death his conviction of first penalty degree following Frierson cial circumstances other and offenses. I), we reversed (Frierson P.2d 587] earlier trial
defendant’s conviction of these at an same offenses in constitutionally that defense had that trial ground provided a di investigate present adequate representation failing properly remand, his new ap minished defendant requested defense. On as a defense counsel to of his diminished pointed present evidence trial, counsel declined at the of the but circumstances guilt/special so, until to withhold such evidence do that it was wiser apparently believing his attorney defendant and When the conflict between penalty phase. attention, decision ruled that the was to the trial court’s the court brought counsel, defendant, to On make. whether to a defense present claims, alia, in concluding this that the court erred inter appeal, refuse, express had over defendant’s authority that defense counsel We circumstances. defense to objection, charged special that, is well-founded and of this the claim conclude under facts judgment. and findings reversal requires time, of first murder degree At the we affirm defendant’s convictions same the other substantive offenses enhancements.
I The prosecution’s case-in-chief at same facts the retrial revealed the basic that were disclosed at the initial trial and were summarized Frierson 1. We review them briefly. 3, 1978,
On Bulnes, January Peru- Kramer and Guillermo two Edgardo matter, vian airline employees the ultimate victims in this drove Holly Aire Motel in Chris. Bulnes Inglewood visit woman named knocked on the door to room 18 and told the woman who yоung respond- ed—later identified as Zondre he was for Chris. Wooley—that looking *4 $100, Wooley there, said that Chris was not offered Bulnes a for “date” and, declined, when he said that she would call Chris for him. booth,
While walked to Wooley a Bulnes his car nearby parked telephone across the street from the motel to the He and Kramer then went driveway. booth and phone Wooley told them They that Chris would arrive shortly. thanked her and returned to their car. thereafter,
Soon defendant the car and asked if were approached they were, for waiting Chris. When Bulnes said drew a they gun defendant from his it pocket, at Bulnes and cocked the He then pointed hammer. men, entered the back seat the car behind the two and ordered Bulnes to door, lock the start the car by and the direction indicated begin driving defendant. ride, the
During defendant demanded and obtained the victims’ wallets him, and watches. defendant told Bulnes to look at Bulnes Although turned repeatedly glanced and at faсe. After a few traveling defendant’s blocks to area, a somewhat less defendant ordered Bulnes to populated park the car. He then both shot Bulnes and of their heads. Kramer the backs Although Kramer died the at did apparently bullet directed Bulnes instantly, not penetrate his skull and he was able to with defendant and disarm grapple him. Bulnes pointed the and gun defendant left the car.
After however, a running few fell the Defendant steps, ground. Bulnes then him grabbed around the neck and tried to retrieve the weapon. During the into ensuing struggle, Bulnes chamber shots gun’s by firing emptied ground and threw When defendant released his gun away. grip Bulnes, motorist, street, Bulnes ran to a down nearby flagged passing car, was driven to a As he saw defendant walk- Bulnes entered hospital. in the ing general direction of the Aire Motel. Holly At the A Bulnes to the few hours hospital, police. the events reported later, defendant and Aire were room at the Wooley Holly arrested victims, incrim- with other along Distinctive owned Motel. watches evidence, in the were found motel room. inating Code, (Pen.
Thereafter, with murder were Wooley charged defendant and (§ 209), robbery 187),1 (§ 211), robbery kidnaping purposes § The amended information (§ (a)). assault with subd. deadly weapon 12022.5, (§§ use were firearm also the offenses alleged aggravated by 1203.06, 12022.7). (§ Finally, (a)(1)) subd. and great bodily injury information under defendant with two circumstances charged wilful, law, that the murder was 1977 death applicable alleging dur- deliberate and and was committed premeditated physically 190.2, subds. (Former the course of ing robbery kidnaping. § (c)(3)(i), (c)(3)(ii).) retrial, shoot- Bulnes,
At the but survived the who was seriously injured identified account of incident and ing, gave positively foregoing defendant as the officers testified assailant. investigating police circumstances of evidence- the arrest and the discovery incriminating clothing— including bloody victims’ distinctive watches and in the motel room. inmate at the when county jail who had been Finally, *5 defendant was defendant had recounted testified that initially apprehended him, the entire crime and the two had robbed shot admitting that he victims. case-in-chief,
After the defense counsel prosecution had its completed rested without defense. Immediately witnesses calling any presenting any thereafter, held, in which of discussion was outside the presence jury, de- the conflict and as to whether any between defendant defense counsel fense should be presented explicitly brought on defendant’s behalf was discussion, the court’s as well the events attention. We describe as that to it held there- leading up shortly and an additional in-chambers conference after, conflict, in some the trial detail below. After considering counsel, not ruled that the decision whether to defense was for defendant, to make. without jury case went Accordingly, evidence been having by defense. presented charged returned a verdict all the finding guilty defendant
offenses and two enhancements and also true the charged finding circumstancеs.
At the evidence other criminal penalty phase, prosecution presented armed conduct that committed two including defendant had in the past, robberies and a in which the was killed. victim shooting noted,
1Unless otherwise Code. all section references are to the Penal that The defense of witnesses whose testimony suggested called a number Bulnes, had been mental state at the time defendant shot Kramer and his known commonly affected more use the drug phencyclidine, defendant, witnesses, testified PCP or dust.” Several friends of “angel lay PCP, (2) to his use (1) to his including use of a long-term variety drugs, PCP, offense, his intox- alcohol, as well as on the of the day witnesses, had had icated who state before the crime. Two shortly expert PCP, on de- also testified considerable with users of experience working Gillick, testified fendant’s behalf. Dr. Marvin a forensic psychiatrist, about vol- in his defendant a “mental opinion abnormality brought had incident, PCP, that, time although untary intoxication” of at the intent to rоb and defendant had the mental form the capacity specific victims, his mental abnormality “substantially impaired kidnap [his] criminal for first degree to form and harbor the intents necessary murder,” i.e., Dr. Ronald Siegal, psy- deliberation and premeditation. “was se- testified that defendant also chopharmacologist psychologist, of both as a result intoxicated with PCP the time of the verely [at offense] a long period an acute on that as well as chronic use over ingestion day rebuttal, time.” In officer who arrested both Bulnes and the police testified from not believe that defendant their observations did they of the crimes. from intoxication at the time suffering any drug-induced discussing In his at the closing argument phase, prosecutor—in out that the diminished the defense—pointed evidence presented by evidence, and delib- to the defendant’s relating ability premeditate erate, at the guilt/special concerned that had been at issue matters actually *6 that interesting circumstance of the case. He told the “It’s very phase jury: mental state in the defense offer evidence on the defendant’s should bearing of the trial. Now to and deliberation at this regards premeditation phase in the was an element guilt phase. and deliberation premeditation important and deliberating, If the had been found defendant guilty premeditating Now, it wasn’t why then we wouldn’t be this of the trial. facing phase Well, very there’s a you offered at the first of the trial? I submit phase of clever I it’s a matter reasonable of that. submit to that you explanation do because had to trial tactics and probably something counsel] [defense He convince at the guilt phase. knew that evidence wasn’t going anybody evidence, the ambiguous knew that no one was going buy skimpy and that the hearings, evidence that offered in this phase was particular over, carry not—didn’t once that and those theories were was guilty phase him, they phase he could not use them at the day that will оf evidence would no is now that this type have But the impact. hope about imposition influence someone who feel faint you might among kind of hook.” death that will hold onto that as some penalty, defend- deliberation, sentencing a After a returned verdict day The a new trial. ant motion for to death. The trial denied defendant’s case now before us on is automatic appeal.
II de evidence established clearly prosecution’s guilt phase rale felony-murder fendant was of first murder—under the guilty degree Defendant with a deadly weapon. well as and assault robbery, kidnaping offenses, maintains, He does not conviction of those challenge had however, that the trial in that his trial concluding court erred demand, refuse to present in the face of authority, defendant’s express to withhold any defense and instead charges evidence such a To place defense until the supporting penalty phase. facts claim in it is of additional to considеr number perspective, necessary and circumstances disclosed record. noted,
As in reversed already August Frierson I—decided 1979—we first defendant’s initial counsel at the conviction on the defense ground trial had to inves provided incompetent representation failing properly trial, coun tigate, In that diminished defense. prepare capacity sel had made an at the guilt/ raise the diminished issue attempt testified special circumstance a few who lay witnesses by presenting use, general terms to but had consult any expert defendant’s failed to drag witnesses who have might empha aided in viable defense. presenting failure, sizing seriousness trial counsel’s we noted that “the crucial, of diminished was for it certainly represented ultimate, sole was serious, defense to the which he indeed crimes with I, 142, 163.) italics.) (Frierson charged.” (Orig. supra, reversal, When the case was a new remanded to the trial court after the Blake, On Martin on retrial. attorney, represent аppointed 9, 1980, conference, told the court January Blake during pretrial another have attorney may solicited defendant’s representation previous month, con- some Defendant causing delay in Blake’s trial preparation. *7 the court firmed that he had been but told contacted another attorney, that to he retained The advised defendant good relations with Blake. court inform it if he became dissatisfied with Blake. later, 7, 1980, motion
Two months on filed a March defendant personally Blake; the court to requesting attorney of a second assist appointment Blake to motion. On March permitted withdraw the court, Blake wrote a letter to the he had a conflict with that serious stating new outset of wanted a Defendant that at the attorney. explained representation Blake had said that his be diminished defense would capacity, but that when he had I got to Blake that “the spoken day understanding was that I don’t have a defense.” that Blake really Dеfendant complained had not properly investigated diminished defense and requested the court to a new choice. appoint attorney defendant’s 10, 1980,
On on to April court held a defendant’s motion hearing substitute hearing counsel. Blake filed a declaration the outset of the that there had been a but attrib- confirming breakdown in relationship, an- uting breakdown to what he felt was interference of the continued other He the court to trial on the attorney. told that he was not ready go scheduled date and if decided April trial the court second appoint attorney would be to work willing either as coun- supporting primary sel. de- response court’s as to “of choice” inquiry attorney which mind,
fendant had in defendant named a whom defendant attorney, specific had never met but who he had heard was a who “pretty good attorney” handled only murder cases and took The trial denied appointments. Blake, the named request and indicated apрoint attorney place that he did not think claim was sufficient to of conflict warrant substitution of new counsel.
Blake, however, still unsure that he could overcome the breakdown in relations with defendant and asked for the matter a few minutes discuss discussion, with him. After that Blake court that defendant informed the had decided that he Blake to wanted continue him. At the same represent time, Blake stated: “I also will court that I want to make represent little more detailed into into this use of the inquiry this—initial inquiry so that we have a experts really can true to the court that representation Mr. Frierson wishes to continue with me. [1] That won’t be necessary that, have a (Italics added.) return on that will just be my problem.” continue, court then asked defendant whether he to have Blake was agreeing and defendant said “Yes.”
The record reveals further about conflict until nothing attorney-client indicated, trial, Blake at the conclusion of case at that the the People’s defense was without there- resting putting Immediately evidence. after, at Blake’s was held. Blake stated: in-chambers conference request, “After with doctors and Mr. my consultation investigation my Frierson, be my was that there should not a defense opinion presented, as to the Mr. especially guilt diminished capacity phase. Frierson with He’s advised me several strongly disagrees position. *8 times he advising wishes to I precaution defense. took present And that’s this problem. the court a about informally days couple ago dis- myself—have and where it stands. We’ve discussed—Mr. Frierson of a strong, And he’s still cussed this until 20 minutes probably ago. up a dimin- like to present of mind that he would very strong position—state ished defense.” its atten- Blake problem
The trial court confirmed that had brought into wished to earlier, get tion some time had not but that it explained at that the defendant’s privilege details time for fear specific infringing understanding then under its against self-incrimination. ruled that law, attorney “the final and has to be of the decision judgment thаt defense to how to in a case.” it concluded proceed Accordingly, defense, had the defendant’s counsel to decline to a authority present despite wishes. contrary
The next after the case day, had been closing arguments presented had been submitted Blake informed the court that jury, convened wished to make a statement. Another conference was in-chambers stated; “Well, and Frierson I been for about county jail eight housed in the I telling months. And seen And he was Mr. Blake different occasions. me I was I didn’t yesterday, a defense all Then until going present along. know we wasn’t a told me that he was going defense. He going put testify, call a He said he was to have the psychiatrist. psychiatrists going but he was witnesses. witnesses going got subpoenas call But the case And he rested the yesterday. you just know this me when surprised after I had a the district I I feel that did. And wanted a defense. attorney a right to I didn’t want to put defense. And feel that Mr. Blake present me. for up disqual- And should have told you, judge, [he] was ified or hisself off I feel that the court get know. And you me wrong denying a defense.” defense, and
The court rejected the claim that it had denied defendant a of the reiterated its view that his counsel “was lawsuit.” in control record, of his From this review from the outset of the it is evident that Blake, representation defendant made it clear that wanted is diminished It defense at the phase. guilt/special also there clear that some which counsel was at least evidence—of noted, aware—to such defense. As at the support presented not who testified to defendant’s only number of witnesses lay offense, also PCP of the but long-term drug usage day and his use of on the two witnesses abuse history drug who testified expert addition, to the effects of PCP on behavior. In chronic use of an abuser’s one sub- PCP use had experts concluded that defendant’s specifically
812 his
stantially
to form and harbor the criminal state of
impaired
of
mind—premeditation
for a
deliberation—necessary
finding
circumstances under the
1977 death
law.
applicable
issue
is whether a
counsel’s traditional
principal
presented
defense
to control the
power
conduct of
case
to withhold
authority
includes the
the
of
presentation
any defense
of a
stage
at
circumstance
guilt/special
case, in the face
capital
of a
desire to present
defendant’s openly expressed
a defense at that
the existence of
credible evidence
stage
some
despite
out,
the defense.
support
As defendant
this issue is
accurately points
quite
distinct
from
question whether trial counsel
competent repre-
provided
sentation in
to withhold
evidence until the
choosing
penalty phase
trial.
in
Although
also maintains
that trial
argument
separate
action,
counsel was not
in
that course of
competent
following
analyzing
contention we
present
assume
counsel’s decision withhold
the evidence from the
within
circumstance
fell
guilt/special
phase
range
of conduct that competent
reasonably
defense counsel
De-
might
employ.
so,
fendant’s claim is that even if
that is
decision whether
present any
defense
at
at all
case is so
guilt/special
capital
fundamental,
defendant,
and has such serious
for a
that it is
consequences
one
In
that cannot
be
from him
counsel.
properly
taken
his
by
support
contention,
this
defendant relies on a series of cases—decided
the United
that,
States
Court as well as
this court—which have
Supreme
recognized
with
to certain
in the course of a criminal
respect
fundamental decisions
action, a counsel’s control
toway
over the
must
the de-
proceedings
give
fendant’s wishes.
(1966)
Brookhart
Janis
86 S.Ct.
1245], counsel, line, one of federal over early decisions this the defendant’s apparent that the criminal objection, agreed proceeding trial,” would be conducted as a prosecution facie in which the “prima required only present a facie and the defense prima showing guilt would neither evidence on cross-examine the defendant’s behalf nor witnesses. facie” prosecution proceeding such a Concluding “prima was “the (384 U.S. at practical equivalent plea p. guilty” [16 319]), L.Ed.2d at court the conten- rejected Brookhart p. emphatically tion “that counsel for desire defendant can override his client’s expressed court to and enter in the name of client another open plead guilty, the label—which would shut off the constitu- plea—whatever tional him which to confront and cross-examine the witnesses right against (Id., he would had an to do not guilty.” have under a opportunity plea 319].) 7-8 L.Ed.2d at reversed the pp. Accordingly, [16 (See defendant’s conviction. also v. Wheeler Cal.App.2d 246].) *10 166, 466 P.2d In v. 2 Cal.3d (1970) Cal.Rptr. Robles 205 People [85 defend- 710], which the decision over recognized we another fundamental Robles, counsel, ant, control. than have ultimаte rather his must properly on case, insisted, attorneys’ objection, over his a the defendant had capital that the behalf; claimed in his own testifying appeal, appellate that the ground on the testimony trial court had erred in such permitting within decision whether call as a was a tactical decision defendant witness contention, we of In rejecting trial counsel’s province authority. a criminal defendant ... attorney an explained: “Although representing [citations], that has the to control the court proceedings power power certain fundamental rights be exercised to a defendant of deprive [cita- own behalf is of We in one’s testify are satisfied that the right tions]. [f] to take such fundamental who demands timely that defendant importance to give has the right stand advice his counsel contrary given by The in- an defense before exposition jury. [Citation.] sistence be to his but in the final harmful upon testifying may analysis should is of such right every fundamental importancе criminal a de- have it in a whether normally case. decision Although attorney fendant should is trial testify within the [cita- competence tion], where, here, he cannot that he to testify, defendant insists wants (2 214-215.) be of that Cal.3d at deprived pp. opportunity.” General, fall within Attorney directly that the facts here do not noting Brookhart, Robles, decisions which parameters the other counsel’s, defendant’s, have identified specific rights as within a rather than (1960) ultimate control 54 442 (see, v. Holmes Cal.2d e.g., People [5 871, trial]; Superior 353 P.2d Townsend v. Cal.Rptr. [right 583] (1975) 774, 251, Court 15 Cal.3d 543 [right 781 P.2d Cal.Rptr. 619] [126 trial]; 709, (1975) v. 717 speedy People Cal.Rptr. 15 Cal.3d [125 Gauze 773, P.2d insan- 542 refuse enter [right defendant to competent 1365] ity that this is decisions which plea]), suggests many case analogous have strategy, an over trial attorney’s ordinary control matters upheld such (see, as whether a be v. e.g., witness should called particular 441, (1972) 313, 1]), 6 P.2d whether Beagle Cal.3d 492 458 Cal.Rptr. [99 (see, (1972) certain evidence be v. People Murphy should introduced e.g., 349, 138, 594]), 8 Cal.3d 366-367 503 P.2d whether Cal.Rptr. [105 (1980) 26 Lamрhear should evidentiary objection (People be interposed 689]), or whether partic- 608 P.2d Cal.Rptr. [163 ular trial be v. Jackson judge (People should challenged. 849].) General Attorney In this
Cal.App.2d regard, dimin- evidence of stresses decision to withhold any counsel’s counsel’s ished based on clearly until penalty phase quite assessment of the best trial tactics to pursue. we have
Although little doubt that trial counsel’s actions reflected his judgment as to the most trial the relevant promising strategy, precedents demonstrate that that factor alone does not defeat defendant’s claim. The decision whether or not a defendant should take the stand is often steeped considerations, tactical Robles yet establishes that counsel cannot clearly override a defendant’s decision to in his own behalf. testify Similarly, decision whether to to a plead guilty lesser offense also reflects frequently concerns, *11 strategic but a defendant nonetheless retains сontrol over personal such (See, a plea. People 305 e.g., Rogers Thus, stated, 892].) P.2d it is sometimes as a although thumb, rule of that matters of trial and tactics exclusively rest strategy within the counsel, discretion of the fact that the trial action attorney’s this case was motivated in- by strategic considerations does not foreclose into whether the quiry decision in here was “of such fundamental question (Robles, importance” supra, 215) Cal.3d at wishes p. should have been respected.
Several considerations lead us to conclude that this case is qualitatively different from the bulk of decisions which have coun- confirmed properly sel’s broad tactics,” control over “trial and is instead to those analogous cases which have recognized need to the defendant’s respect personal choice on the most “fundamental” decisions in a criminal case. with,
To begin (25 we recognized 163), Frierson I Cal.3d at diminished defense which defendant wanted his counsel tо present was defendant’s sole circumstance defense to the Al- special allegations. though defense counsel cross-examined the witnesses and prosecution urged jury to return closing argument a second convic- only murder degree tion, the uncontradicted evidence before it a first virtually compelled degree felony-murder Furthermore, conviction. while the circumstance special charges required the additional prove elements of premedita- tion deliberation, in the absence of defense evidence relating defendant’s state of mind the was left without jury basis any evidentiary legal theory Thus, reject circumstances.2 while coun- special defense sel never expressly conceded the case at the guilt/special circumstance his stage, decision not to defense at that present any assured stage virtually that the would jury find in favor of the on all issues. prosecution course,
Of trial counsel may well have had sound reasons to believe that defendant’s best chance of the death was to escaping forego any at attempt since, circumstance if the de- defending allegations, introduced, 2Because no evidence of diminished had been was not in structed on that doctrine. failed diminished succeeded, capacity—having the evidence of had not fense at the penalty less potency well have had once—might the jury impress of counsel’s matter, however, strategy the adoption As a practical phase. of life face sentence that, minimum, defendant would at a guaranteed have felt Although of parole. without possibility imprisonment costs, at defend- all the death penalty it wisest to avoid attempt that was per- a different line—evidently perspective, fate had ant—whose of parole was life without possibility he felt that a sentence of because haps main- Thus, steadfastly death sentence. not much preferable circumstance to the special a defense tained that wanted to present without life imprisonment only avoiding charges, preserving hope possibility parole. the decision flowed from
Given the magnitude consequences guilt/special whether or present any *12 to honor defendant’s we do not think counsel could refuse phase, properly a Just as de- stage.3 desire to a defense at that clearly present expressed to plead guilty fendant in an case the to refuse ordinary right criminal retains to will lead a lesser offense even if his counsel convinced that such a plea is to a also retain the right a lesser a defendant in trial must penalty, capital to have to the or circumstance only charges his viable defense guilt special Robles, the of To presented “[ajlthough at initial the trial.4 stage paraphrase noted, that in this case there penalty phase proceedings 3As the record of the demonstrates Al support capacity present. was the defense defendant wished evidence diminished incompetent not though analysis we have for of that defense counsel was purposes assumed determining penalty phase, in we to withhold diminished evidence until the the fallen within the equally think that it is at clear that conduct would have least counsel’s range of if diminished evi competent representation he had chosen to the allegations. Accordingly, a we have no occasion special dence as defense to the circumstance right to insist on the this case td determine has constitutional whether a defendant presentation no evidentiary support has or on which com of defense which no credible petent rely. counsel would 572-573, 562, (1975) 4In Faretta v. L.Ed.2d 95 422 U.S. [45 819-820 California 2525], Court, rights guar the Supreme discussing the nature of S.Ct. United States the Constitution, by “The Sixth Amend explained: anteed the Sixth Amendment of the federal accused; grants it to the provide merely ment does not that a shall be made for the defense accused, counsel, personally right It who must accused to make his defense. is the not accusation,’ be be ‘confronted with the ‘informed of the nature cause of the who must him,’ obtaining for wit against ‘compulsory process witnesses be and who must accorded accused; for it right given directly nesses in favor.’ is is his . . . The to defend fails, provision supplements consequences who The suffers the if defense counsel [t] assistant, counsel, expert, is design. speaks however still this It ‘assistance’ of and an counsel, contemplate that language spirit an and the of the Sixth Amendment assistant. Amendment, willing be aid to a by tools shall an guaranteed like other defense unwilling right his organ interposed defendant and defendant—not the State between an personally.” to defend himself a defendant chooses have The Faretta court also noted that is true when “[i]t case, power to the counsel the lawyer may allocate manage present his law traditiоn Janis, many 384 binding strategy . . . Brookhart v. make decisions of trial areas. Cf.
the defendant’s insistence of a defense at the presentation guilt/ [on stage] in the final be harmful to his case analysis ... is of right such defendant should have it importance every )5 (2 . .” . . Cal.3d at p. 215. course,
We recognize, that a defendant’s that a right insist defense be at the initial presented the trial will inevitably impinge on defense counsel’s of the on defense handling case. Such impingement actions, however, counsel’s results time a defendant chooses to exercise personal right—such by to trial right testify right jury- over that, counsel’s contrary advice. Numerous decisions in such a explain however, consent, only justified, U.S. 7-8 .... This allocation can be by the defendant’s outset, accept representative. at the as his acquiesced . . . Unless the accused has representation, in such presented guaranteed by the defense is not defense him the Con stitution, for, sense, (First very added.) (422 in a real it is defense.” italics U.S. at 573-574].) рp. 820-821 L.Ed.2d at pp. [45 Indeed, judges dissenting even the in Faretta clear made that defense counsel does not enjoy an strategy”—to unlimited discretion—in the exercise “trial override a defendant’s Blackmun, importance. wishes matters joined fundamental Justice in a dissent Chief Burger Rehnquist, Justice emphasized and Justice that Faretta case itself “not a where counsel, consultation, against inadequate the wishes of with the defendant or has adopted strategy a trial significantly rights. affects one accused’s constitutional counsel, Janis, overbearing remedy. For such conduct there is a Brookhart v. U.S. (Italics added.) (422 589].) . . p. . .” U.S. L.Ed.2d at 5Although (ABA) the relevant provision of the American Bar Association Standards *13 Criminal precise Justice—standard involved in this 4-5.2—does not address the issue commentary the appears, by implication, support to that standard at least to the above con (1) recognizing say clusion. After the plea that defendant should have the ultimate on what enter, (2) trial, (3) behаlf, jury to to testify whether waive to his own the and whether commentary observes: “It in to important jury lawyer is also a trial for the defense consult fully with the may willing accused about lesser included the trial to offenses court be Indeed, to jury. important submit the because this decision is so as well as so similar to the defendant’s charges plead, decision about the to which to the defendant should be the one instance, jury to decide to seek whether submission to the of lesser included offenses. For defendant, prosecution, in murder attorney, the rather than the defense should determine whether the should the jury be asked to submit to the lesser included offense man (1 (2d 1980) 4.68.) slaughter.” p. ABA Standards for Justice ed. If a defendant Criminal noncapital in a case should be the one to lesser submitted to decide whether have a offense jury, capital right to the it appears a fortiori that a defendant in a case should have the to present only guilty insist counsel to find him permit defense would the lesser, (Sеe noncapital Goodpaster, offense. The Trial Assistance for Life: Effective 299, Penalty (1983) in Counsel Death & fn. Cases 58 N.Y.U.L.Rev. 333 137 [“[C]ounsel evidence, obligation has to thoroughly investigate guilt penalty phase an and and assess both fully to inform his client trial to implications, tire and obtain the client’s assent respective guilt penalty phase presented.”].) and cases to be Indeed, cases, even applicable when measured to civil defendant’s con- standards 272, appears (1969) have In Cal.Rptr. tention to Linsk Linsk 70 278 merit. v. Cal.2d [74 760], 544, merely protecting 449 P.2d we “If discretion in employs noted: counsel his best rights achieving goals, authority proceed his client’s his to client’s fundamental his hand, any appropriate if unquestioned. manner has been On the other counsel abdicates a instructions, right authority.” contrary express substantial of the client he his It to exceeds deny right present would be difficult to that the defense to a circumstance allegation right” is “a of the defendant. substantial
817 best represen- situation, is provide obligation simply the attorney’s Robles, supra, 2 (See, e.g., he can under the circumstances. tation that 616, 631 [194 34 Cal.3d 215; (1983) People McKenzie Cal.3d at v. p. establish also Further, authorities 462, 769].)6 668 P.2d Cal.Rptr. contrary counsel’s his of action despite on a course when insists provided counsel advice, that his complain he not later warning People v. (See, e.g., with his wishes. ineffective assistance complying 776]; 640, P.2d 841, Haskett Cal.Rptr. 852-853 (1982) 30 Cal.3d [180 supra, Gauze, 718; v. California, Faretta 709, 15 Cal.3d People supra, v. Moz- 562, 581]; cf. 806, 834-835, L.Ed.2d fn. 46 U.S. [45 212, 671 P.2d [de- ingo 363] not relieve did defenses” of “mental hostility fendant’s to presentation him to so as enable investigate such defenses counsel of obligation defendant].)7 make an informed recommendation to both conclusion, in this case it is clear that In the above light attorney’s the scope and the trial court misjudged fundamental on a matter of wishes authority override defendant’s express judgment to against his better attorney 6As the court explained “Requiring in Robles: an always with attorney; attorney is faced places examine client no unfair burden on is available strategy light the burden of in the of what evidence developing his trial by an ordinarily represented he is presented prejudiced Nor when court. is a defendant testify. believes, defendant, On the attorney contrary who that the latter should hand, testify may should disagreement other in a few as to whether a defendant cases the magnitude jeopardize signal a attorney-client relationship breakdown in the such 215.) (At right to effective assistance of counsel.” provided not have present that defense counsel could there is no indication judgment— against it his better representation that—although effective had realized guilt/special the diminished been presented defense should have shortly did investigated thereafter stage, as had the defense and defendant insisted. Counsel (See ante.) fn. penalty phase the relevant of the trial. witnesses *14 Thus, attorney—for when an pоsed are questions this case does raise difficult that not the desires the defendant properly present ethical the defense that reasons—determines cannot believe that That reason to present. might example, to for when counsel has be the present problem was give testimony. No such perjured defendant’s alibi witnesses intend to here. present to a decision may 7Our conclusion that defense override defendant’s counsel any with this way in inconsistent guilt/special defense at the is not circumstance 798, (1981) Cal.Rptr. 621 P.2d People court’s decision in v. Cal.3d 739 [170 Chadd Code, 1018), (Pen. that, statutory provision § held specific which we virtue of a 837] the and his capital of both plea guilty requires to a the concurrence a offense by the state that statutory provision a determination The issue in Chadd reflected counsel. at prove a defendant’s the particular procedural guarantee—the right require basic public trial—is so beyond at fair and guilt capital of a offense a reasonable doubt waived. it should be agree be counsel that that it must afforded unless both defendant and unilaterally to waive—over Nothing suggests right in Chadd that defense counsel has right present a defense express objection—a as the right as fundamental parole. imprisonment possibility without charges carry of life that minimum As a importance.8 consequence, defendant was of the opportunity deprived only viable defense to the circumstance special allegations. circumstances, Under these circumstance and the sub- special findings sequent penalty be judgment must reversed and the remanded for fur- case ther Since defendant proceedings. makes no claim of di- evidence minished which was withheld until the could penalty phase possibly have affected matter any other than the de- circumstance special findings, fendant’s murder, degree convictions first deadly assault with a weapon, robbery and enhancements, togеther with the kidnaping, accompanying stand.
The special circumstance and the are reversed. findings penalty judgment In all other respects, the judgment is affirmed. J.,
Broussard, J., and Reynoso, concurred. MOSK, J., Concurring I concurin the judgment Dissenting. affirming but guilt dissent from reversal of the findings circumstance the penalty judgment.
As a court member who heard the Frierson original appeal (People Frierson 587]) Cal.3d 142 P.2d I an get uneasy déjá vu. feeling At that time the issue was the failure primary counsel present evidence of Six defendant’s diminished capacity. years later we have retrial, before us the same Frierson on a second after appeal and a similar claim regarding diminished capacity.
However, there is a
distinction between
two
significant
proceedings.
In Frierson I counsel failed to
offer
evidence of diminished
develop
Richardson,
capacity, even
ob-
though Justice
for the
writing
plurality,
served that “diminished
merito-
be
sole
capacity appears
potentially
(id.,
retrial,
rious defense”
at
italics in
did
original).
obtain expert
on this
testimony
question
presentation
jury.
therefore,
issue,
was not
be
whether diminished
evidence was to
when,
offered,
i.e.,
but
at
what
trial.
point
emphasize
8We
holding
expressly
our
rests on the fact
case
record
this
reflects
conflict
presented
between
over
be
defendant and counsel
whether a defense was to
guilt/special
stage.
attorney’s authority
trial
Because
to control the
proceedings generally
power
particular
includes the
to decide when and if
evidence should
*15
introduced,
be
ordinarily
there would
be
explicit
no reason—in the absence
indication
attorney’s
a conflict—for a trial
inquire
court to
into
concurrence with his
the defendant’s
Thus, nothing
opinion
actions.
suggest
this
is
to
the absence of such an
intended
that—in
on-the-record,
express
required
conflict—a court
personal
is
obtain an
waiver from
(Cf.
putting
defendant whenever
on a defense.
defensе counsel chooses
rest without
Boykin
(1969)
274,
1709];
(1969)
v. Alabama
819 meritorious a potentially failure to present that a total I can understand and to reverse of counsel competency defense is ground impugn However, timing the issue is conviction, simply I. when in Frierson as trial counsel’s we second-guess I not believe should do presentation, of the defendant. with the views even when it conflicts strategy, his diminished to save was determined the better strategy Here counsel course knowingly this He chose evidence for the penalty phase. client to reluctant his the extent of permitting and even to deliberately, other a verdict If had achieved with the trial he judge. discuss the matter ultimately did not death, That he have been a hero. counsel would than it im- in declaring reviewing tactic not in his does prevail justify proper. not withdraw counsel may
We have held on
occasions that although
many
accord with
defense,
defense in
a valid
conduct the
strategy
he
“with
to review
subjected
his best
and without being
professional judgment
588, 600
(1969)
v. Fain
70 Cal.2d
(People
[75
clarity
hindsight.”
(1972) 8 Cal.3d
633,
65];
v.
People Murphy
see also
Cal.Rptr.
P.2d
138,
(1970)
349,
594];
v. Williams
People
503 P.2d
365-367
Cal.Rptr.
[105
(1967)
1008];
v. Hill
894,
208,
People
471 P.2d
Cal.Rptr.
Cal.3d
905 [88
234,
circum-
586].) The
429 P.2d
114-115
Cal.Rptr.
[60
691, 415
(1966)
Cal.Rptr.
stances of
v. Reeves
In this Ramos respect wrote: Tobriner As Justice 908], P.2d is controlling. to the jury murder case degree presented “Since the first prosecution’s additional theory, on a well as a felony-murder theory premeditation Coun- irrelevant. largely have been evidence of diminished would *16 820
sel could have properly concluded that such evidence as was psychiatric available should be saved for the an effort penalty phase persuade jury was an appellant candidate for the death penalty. inappropriate circumstances, Under these we will not trial coun- proceed second-guess (Id. 585; sel’s choice of (1980) tactics.” People see also v. Jackson 264, 28 603, Cal.3d 290 149].) 618 P.2d Cal.Rptr. [168 This twice, defendаnt has been tried Both by two different heard juries. evidence of his and overwhelming both returned identical verdicts. guilt, I do not believe there been has within the miscarriage justice proscrip- tion of (Cal. Const., VI, the Constitution 13) art. justify requiring § partial third trial on the same more than seven after charges years the crimes were committed. I would affirm the in its judgment entirety.
Grodin, J., concurred. BIRD, J.,C. I write Concurring Dissenting. separately underscore several significant errors in the which also re penalty phase proceedings reversal of quire the penalty verdict.
I. The penalty was informed that determining appropriate pen it alty, could consider “[a]ny other circumstance which extenuates the grav ity crime (Former even it not though is excuse for the crime.” legal 8.88.1, instruction, CALJIC No. 8.84.2.) see current CALJIC This No. based on 190.3, former Penal (now (k)), Code section subdivision (j) 586, meet adequate (1978) demands Lockett v. Ohio 438 U.S. 973, 990, L.Ed.2d (1982) 98 S.Ct. v. Oklahoma Eddings [57 2954] 1, U.S. 104 869], L.Ed.2d 102 S.Ct. since it failed to tell the jurors [71 were they free to give to those independent mitigating weight aspects of appellant’s character or record did not which to the crime. Such pertain an instruction is (See (1985) v. Frank constitutionally required. People 711, Cal.3d 801, 747-755 (conc. 700 P.2d & dis. Cal.Rptr. opn. [218 415] Bird, J.); 163, C. cf. v. People Lanphear 167-168 [203 122, Cal.Rptr. 1081]; 680 P.2d Easley (1983) 34 Cal.3d 878-879 813].) 671 P.2d In the present family Frierson offered evidence of his stable back- him, of his ground, mother’s devotion her unsuccessful efforts to find for his help tried drug problem. his mother had Apparently repeatedly him, to obtain psychiatric waiting clinics had help long but public lists and serious cases ahead of him. She not afford She help. could private had visited him while he was at the California Youth regularly Authority. *17 He worked 18, his home. he returned age When he was released at the He business. for his mother’s and later cousin’s business clothing arrested. he was of the time when at home living part was still it could to tell the jury not instruction was adequate factor (j) communicated instructions jury else in the Nothing consider this evidence. instruction, jurors directed which An this message. accompanying . . factors the . “consider, by [listed and be guided take into account strong 8.88.1) 190.3], (former suggests CALJIC No. section if applicable” list. statutory to the restricted they that the understood that were ly jurors considered actually [senten the factors This “ambiguity concerning 1, Oklahoma, 104, L.Ed.2d 455 U.S. (Eddings 14] supra, [71 cer]” of death. O’Connor, judgment of the (conc. J.)) a reversal compels opn. II. two robber- evidence of
At introduced the penalty phase, prosecution of- these ies, or convicted Frierson had never been accused although statutory aggravating of the fenses. This evidence was offered in support activity factor of absence of criminal or presence “[t]he the ex- violence or or of force or which involved the use use attempted Code, (Former Pen. or threat to use force or violence.” pressed implied 190.3, (b).) subd. § of other
As evidence jury may this court has consider recognized, found that these as it has first crimes circumstances unless aggravating v. Rоbertson (People have a reasonable doubt. beyond crimes been proven 279].) Although (1982) 655 P.2d 53-54 on this jury the trial Frierson’s made effort instruct apparently standard,1 the “other in the which reasonable doubt two errors manner fair crimes” evidence appellant was presented jury deprived trial. First, doubt of a reasonable which “convicted” jury appellant beyond of first degree him guilty these robberies which had found just was the jury to due his right This alone violated murder with circumstances. him of a which had convicted process robbery just offenses. A jury truth of on the fact finder crime could not have been an capital impartial tendency—in- strong these would have charges. very other Such a jury deed, less relatively would be find him guilty almost compelled—to presence or absence consider “[t]he 1The record indicates that the was instructed to or attempted use force the use or activity by of criminal the defendant which involved violence, proved has implied force or which expressed violence or the threat to use been modified.) 8.88.1(b), (CALJIC beyond No. a reasonable doubt.” serious robberies once it all had heard the guilt evidence him showing abe person who commits first *18 This degree murders. evidence should not have been presented to the at all jury until the robberies had been found true beyond a reasonable doubt fact finder. impartial
Second, the beyond-a-reasonable-doubt standard of of other crimes proof implies requirement that verdict be of jury’s unanimous. purpose the standard is to act as a or hedge against hasty ill-considered death penalty decisions. The standard loses obviously its effectiveness if we do not require Yet, jury unanimity. in the nothing instruction which was to Frier- given son’s told the jurors that had they unanimously that he was agree guilty beyond a reasonable doubt of robberies before could consider they them as factors in aggravation.
Unfortunately, CALJIC instruction Rob- after this court’s patterned ertson omits opinion any of a requirement the truth unanimity finding is, other criminal view, activity.2 That instruction with my incompatible demands due process. III.
These errors were a new significant require pen Robertson, alty even in phase, the absence of the other errors.3 (People supra, 33 54.) retrial, Cal.3d at On the court would be well-advised to give new CALJIC instruction fashioned Easley after and to require separate jury determine truth evi unanimously the other crimes beyond dence a reasonable doubt before that evidence be con permitting sidered penalty phase jury. (1983 New) 2CALJIC No. 8.84.1.2 the purpose states: “Evidence has been introduced for [_] showing following defendant has criminal committed [act[s]] [activ ity]: [_] which express involved implied use force or [the violence] [the [or] threat of force or you [activity] Before may any consider of such criminal violence]. [act[s]] an aggravating you beyond circumstance this must first be satisfied a reasonable [_] doubt that the [activity]. did in fact commit such criminal You [act[s]] any not consider [activity] aggravating evidence of as an other criminal [act[s]] ” circumstance.
3I concur in the reversal the special findings.