People v. WilsonPeople v. Wilson
Defendant Javance Mickey Wilson was charged with robbing and murdering or attempting to murder three cab drivers on separate occasions over a four-week period. At Wilson‘s first trial, the jury deadlocked on guilt and the court declared a mistrial. On retrial, Wilson was convicted of robbery, carjacking, and attempted murder of James Richards; first degree murder and robbery of Andres Dominguez; and first degree murder and attempted robbery of Victor Henderson. (
A. Guilt Phase
1. Prosecution evidence
The prosecution presented evidence that in early 2000, Wilson committed a series of crimes against cab drivers in the San Bernardino and Los Angeles areas. On each occasion, the perpetrator called for a cab, then robbed and murdered or attempted to rob and murder the cab driver. The first victim, James Richards, was robbed at gunpoint at the end of a rural road in San Bernardino County. The perpetrator attempted to kill Richards, but the gun jammed and Richards managed to escape. The second victim, Andres Dominguez, was shot and killed in the same location several weeks later. The perpetrator then used Dominguez‘s cell phone to request another taxicab from a Pomona company. The driver of the cab that responded, Victor Henderson, was the third victim; he was killed approximately two hours after Dominguez, shot by the same gun used to kill Dominguez.
James Richards picked up a passenger in front of a grocery store in downtown San Bernardino on January 7, 2000. The passenger was going to Bloomington, about 20 minutes away. After reaching Bloomington, the passenger directed Richards to stop on a rural, dimly lit road. There, the passenger drew a gun and robbed Richards. Then, forcing Richards out of the cab and onto his knees, the passenger put the gun into Richards‘s mouth and tried to shoot him. The gun jammed, however, and Richards was able to escape to a nearby house. The owner of the house heard Richards screaming and pounding on his door and saw a figure in the street pointing a gun at Richards before getting into
When police arrived at the scene, Richards told them the perpetrator was a Black male in his 30s, with short hair and pock-marked skin, about six feet tall and 220 pounds, and wearing a light-colored ski jacket. Although Wilson was 25 at the time, Richards‘s description generally matched Wilson‘s appearance. Richards later identified Wilson from a photo lineup but was unable to pick Wilson out of a live lineup held two weeks after the initial identification. Richards described the weapon Wilson used as a smaller, chrome gun. Police later recovered a .22 handgun fitting this description from a friend of Wilson‘s, as part of their investigation into the crime.
The prosecution presented additional evidence to connect Wilson to the weapon used in the Richards robbery and to related events and locations. Joe Diaz testified that on January 6, 2000, intruders broke into his house and took everything from his gun case, including a hunting rifle and a .22 handgun that jammed nearly every time it was shot. A childhood friend of Wilson‘s purchased that hunting rifle from Wilson in January or February 2000. The same friend testified that Wilson‘s grandparents lived in Bloomington, not far from the road where Richards had been robbed, and that Wilson had lived with his grandparents periodically. In an interview with detectives, Wilson admitted having access to a small .22 pistol. At the time of the robbery, Wilson lived in an apartment in Victorville about two miles from Diaz‘s home and one street away from the location where the cab company recovered Richards‘s stolen taxicab. It was about 40 miles from Victorville to San Bernardino, but in January 2000, Wilson‘s mother had been staying in a motel right by the grocery store in San Bernardino
Andres Dominguez drove his cab to pick up a passenger at a San Bernardino grocery store just before midnight on February 20, 2000. Soon afterwards, Dominguez was shot and killed on the same road where Richards had been robbed. A resident who heard the gunfire saw a car leaving the scene, while Dominguez‘s taxicab remained on the street.
Later that night, a caller used Dominguez‘s cell phone to request a taxi from a Pomona cab company. Victor Henderson picked up the passenger. At approximately 2:30 a.m., Henderson was shot and killed a distance from his cab. Eyewitnesses saw a man in a white ski jacket running in the street where Henderson had been shot. The man then got into a car that drove away before he was fully inside, dragging him briefly.
Sara Bancroft and Christina Murphy saw Wilson the day before the murders and the morning after; each testified that after the murders, Wilson had an injured leg and was complaining about scuffs on his new sneakers that had not been present the day before. A friend of Bancroft‘s, Tiffany Hooper, also saw Wilson the morning after the murders and noticed his injury.
Bancroft was a neighbor of Wilson‘s in Victorville who knew Wilson and his younger brother Seeney. She rented a car for Wilson to use on February 20 and 21. She saw Wilson on the evening of February 20. He was with an 18- or 19-year-old man she did not recognize. The next morning when Wilson came back with the rental car, he was with a different man and there
Murphy met Wilson on February 19 and he stayed with her in San Bernardino until about 3:00 a.m. on February 20. She saw him later that day and again the next morning. Although he had not been previously injured, on the morning of February 21, Wilson was limping, his leg was wrapped and a little bloody, and his pant leg was torn. Wilson came to her house with Cory McKinney‘s brother Brad McKinney, who asked if she had seen the news. She had not. Wilson asked her sometime after that what she would think if she found out he shot someone.
Criminalists determined that Dominguez and Henderson were killed by the same weapon. The investigation later revealed the weapon was a .44 revolver stolen from Grant Fargon on February 15, 2000. Fargon lived a half mile from Wilson‘s apartment in Victorville. His entire gun collection — including the .44 revolver, guns that had been painted in camouflage for hunting, and other specialized weapons — had been taken in the February 15 burglary.
Phyllis Woodruff, the girlfriend of Wilson‘s brother Seeney, testified that shortly before the murders she saw Wilson with a large collection of guns on his bed, including camouflaged guns. Wilson had been showing off a long black gun that looked like the .44 revolver later identified as the murder weapon. Woodruff acknowledged that she participated in burglarizing
Woodruff also knew about the Richards robbery. She testified that on January 7, 2000, she was with Seeney and Wilson when they visited their mother at her motel in San Bernardino. Wilson stayed in San Bernardino after Woodruff and Seeney left. Later, back at the apartment Wilson shared with Seeney in Victorville, Wilson told them that he had robbed a cab driver, described his gun jamming when he tried to shoot the driver, and took them to see the taxicab he had stolen and abandoned in a nearby apartment complex. Woodruff said that Wilson gave the malfunctioning gun to Brad McKinney. Police later recovered the .22 handgun stolen in the January 6 break-in of Joe Diaz from the house where Brad and Cory McKinney stayed in San Bernardino.
Woodruff‘s father, Henry Woodruff, described the family barbeque at his house on February 20. Wilson stopped by the barbeque and while there, took the white ski jacket Seeney had been wearing and began wearing it himself. Henry Woodruff recalled that Seeney and Phyllis stayed at the Woodruff house that night. Phyllis and Henry Woodruff‘s wife also told detectives that Seeney was at the Woodruff home that night, which was the night of the murders.
In a statement to police, Wilson admitted using Dominguez‘s cell phone, but claimed that he borrowed it from a
Seeney invoked his Fifth Amendment privilege to avoid testifying; his preliminary hearing testimony was instead read to the jury at both the trial and retrial. During the preliminary hearing, Seeney had testified under a grant of immunity and acknowledged that he had been committing burglaries with Wilson and Woodruff in the period shortly before the murders. In his testimony, Seeney said that Wilson had talked about his plan to rob cab drivers and that he later told Seeney that he hit the first driver in the head with the gun after it jammed. Like Phyllis Woodruff, Seeney said that Wilson showed him stolen items and the abandoned cab from the January 7 robbery, and that Wilson gave the malfunctioning gun to Brad McKinney. Seeney testified that Wilson had been showing off a .44 revolver before the murders and that Wilson borrowed Seeney‘s white ski jacket at the Woodruff barbeque on February 20. Seeney acknowledged that Wilson told him about killing two cab drivers; Wilson said he was dragged by the car during one of the robberies and scraped his shoes. Seeney also described being present when Wilson confessed the murders to his common law wife. They were with Wilson‘s wife in her big rig when she got a call from her dispatcher connecting her to a police detective. When she confronted Wilson and asked whether he killed the cab drivers, Wilson admitted that he had.
2. Defense evidence
The defense presented evidence to suggest that Seeney, Brad McKinney, Cory McKinney, or another third party, could have been responsible for the crimes. One of the detectives who interviewed Phyllis Woodruff testified that she said there were
Much of the defense case focused on undermining Richards‘s identification of Wilson as his attacker. An eyewitness identification expert explained how eyewitness memory can be influenced and testified about several factors suggesting that Richards‘s identification of Wilson might not be accurate. These factors included the possibility that Richards had seen a “wanted” poster with Wilson‘s photograph on it before making his identification; that Richards could not identify Wilson in a live lineup; that the detective administering the photo lineup may have prompted Richards to select Wilson‘s photo by asking about “number five,” Wilson‘s position in the lineup; that the detective might have improperly showed Richards another lineup with Wilson‘s photograph before Richards made his identification; and that Richards at one point thought that someone who did not look much like Wilson could have been his attacker. The defense also presented evidence that Richards robbed a cigarette store in November 2000. The
B. Penalty Phase
The prosecution presented aggravating evidence that included Wilson‘s admission of guilt for the voluntary manslaughter of an individual with whom he had a drug sale transaction, assault of an individual whom he had threatened to kill, and threats to a courtroom deputy during the retrial. Several witnesses related to Dominguez and Henderson provided victim impact testimony.
In mitigation, Wilson presented evidence of his mother‘s mental illness and substance use, and the learning disabilities, brain damage, and behavioral problems he experienced that were related to or exacerbated by being physically abused and neglected during his chaotic childhood.
II. DISCUSSION
A. Richards‘s Identification
Wilson raises several challenges to the trial court‘s decision to admit evidence that Richards, the victim of the first robbery and attempted murder, identified Wilson from a photographic lineup and identified him in court during the preliminary hearing. We reject each of his arguments.
As noted, the night of the robbery, Richards gave police a description of the perpetrator that was roughly consistent with Wilson‘s appearance. After the robbery, however, Richards began to suspect that a man he met in a drug rehabilitation program, Ray Bradford, could be the man who robbed him. Bradford‘s appearance was notably different from Wilson‘s; at five feet nine inches, Bradford was shorter, darker skinned, and had a thinner face. The police did not find reason to suspect Bradford. Instead, they showed Richards a photo lineup (not including Wilson) with the picture of a different suspect. Richards did not identify anyone in the lineup. By late February or March, police suspected Wilson. In early March, Detective Scott Franks showed Richards a photo lineup that contained Wilson‘s photo. Franks provided a standard admonishment that the lineup might not contain a picture of the suspect, that hairstyles and facial hair might have changed, and that the complexion of the person could be lighter or darker than depicted in the photograph. Richards selected Wilson‘s photograph, drawing a circle around the photo and stating that Wilson‘s picture looked “exactly like the guy” and “jumped right out at me.” Several days afterwards, however, when officers held a live lineup including Wilson, Richards did not identify him. In the photograph Richards had identified, Wilson wore a mustache and soul patch; in the live lineup he wore a beard.
Shortly before the preliminary hearing, Richards met with the prosecutor in the hallway outside the courtroom. The prosecutor showed Richards a variety of photographs and documents, including a copy of the photographic lineup on which Richards had circled Wilson‘s picture. At some point during the hallway meeting, the prosecutor asked Richards whether he
The defense moved to exclude both the photo and in-court identifications. Defense counsel argued that the requirements of People v. Kelly (1976) 17 Cal.3d 24, governing the admission of evidence based on a new scientific method, should apply in deciding whether the photo lineup and in-court identification procedures were sufficient to ensure the reliability of Richards‘s identification. Counsel argued the photo lineup from which Richards identified Wilson did not comply with accepted scientific methods for two reasons: (1) administration of the lineup was not “blind” because the detective presenting the lineup knew that Wilson was the suspect and might have inadvertently provided Richards with subtle cues to select Wilson‘s photograph; and (2) allowing Richards to view all six photos in the lineup simultaneously, rather than sequentially, could lead him to make an identification based on the subject who looked most like perpetrator relative to the other photos, instead of by individually comparing each photo to his own memory. Counsel further argued that by showing Richards the photo lineup before his preliminary hearing testimony, the prosecution used a suggestive process to obtain the in-court identification. Counsel argued the identification should be excluded under
In support of the motion, the defense presented the testimony of Detective Franks, who had conducted the March photographic lineup with Richards. After Detective Franks showed Richards the lineup, the following exchange occurred:
“[Det. Franks]: What are you pointing to? Number five?
“Richards: Yeah.
“[Det. Franks]: What about number five?
“Richards: That looks — that looks exactly like the guy right there.
“[Det. Franks]: Okay. Exactly like him?
“Richards: Yeah.
“[Det. Franks]: Okay. What I want you to do then is — I want you to circle number five. Circle the whole thing, sign it.”
Dr. Kathy Pezdek, a memory expert and cognitive psychologist, testified for the defense to describe the relevant empirical research and explain why blind and sequential lineups were considered more reliable. She agreed with counsel that when an administrator gave a cue such as ” ‘what about No. 5?,’ ” it might lead the witness to select that photograph, an interference with the witness‘s memory that blind administration sought to prevent. The defense provided the court a 1998 survey of scientific literature and wrongful convictions from a subcommittee of the American Psychology/Law Society. That group found “impressive” evidence that sequential administration reduces false identifications; its final recommendations included the use of blind administration and a photographic lineup in which the suspect does not stand out. The defense also submitted 1999 findings and guidelines prepared by the United States Department of Justice that were based on 20 years of empirical research and best practices identified by law enforcement agencies across the country. The Department of Justice‘s recommendations did not include blind administration or a
The trial court admitted Richards‘s identifications. Although the court acknowledged Wilson‘s evidence concerning preferred methods of conducting a photo lineup, the court did not “find any evidence to support” the conclusion that a lineup without those features was so “impermissibly suggestive as to violate due process.” The court also ruled that showing Richards a copy of the lineup before his preliminary hearing testimony and in-court identification was not unduly suggestive. After the first trial ended in mistrial, the parties and trial court agreed to abide by the trial court‘s previous ruling on the admission of Richards‘s identification.
The admission of Richards‘s identification had been based on evidence that Richards saw two lineups, one with Wilson‘s photo and one without. Later in the trial, however, the defense located a third photo lineup in the prosecution files that included Wilson‘s photo, and a dispute arose over whether Richards had seen this third lineup. Whether Richards had seen another lineup with Wilson‘s photograph before making an identification was significant because the defense expert testified that Richards might have “recognize[d]” Wilson in the final lineup only because he had already seen his photograph (without recognizing him) in a previous one. To counter this theory, the prosecution presented evidence that Detective Franks had not shown Richards the third lineup: Richards could not be sure whether he was shown two or three lineups; the sergeant in charge of the investigation had prohibited use of the third lineup; and Detective Franks denied showing the third lineup to Richards.
a. Lineup procedures
Wilson argues that the photo lineup shown to Richards was unduly suggestive and that Richards‘s identification should therefore have been excluded as unreliable. Based on the record before us, we are not persuaded.
The “admission of evidence in state trials is ordinarily governed by state law, and the reliability of relevant testimony typically falls within the province of the jury to determine.” (Perry v. New Hampshire (2012) 565 U.S. 228, 232 (Perry).) There is, however, “a due process check on the admission of eyewitness identification, applicable when the police have arranged suggestive circumstances leading the witness to identify a particular person as the perpetrator of a crime.” (Ibid.; accord, e.g., Manson v. Brathwaite (1977) 432 U.S. 98, 114.) To determine whether the admission of identification evidence violates a defendant‘s due process rights, the court asks two questions. First, the court asks whether the identification procedure was unduly suggestive and unnecessary. (People v. Sanchez (2019) 7 Cal.5th 14, 35.) “Suggestive confrontations are disapproved because they increase the likelihood of misidentification, and unnecessarily suggestive ones are condemned for the further reason that the increased chance of misidentification is gratuitous.” (Neil v. Biggers (1972) 409 U.S. 188, 198.) Second, even if the lineup was unnecessarily suggestive, the court asks whether the identification was nonetheless reliable under the totality of the circumstances. (Sanchez, at p. 35.) Exclusion is required if there is ” ‘a very substantial likelihood of irreparable misidentification.’ ” (Perry, at p. 232.) “But if the indicia of reliability are strong enough to outweigh the corrupting effect of
On appeal, we give deference to ” ‘the trial court‘s findings of historical fact, especially those that turn on credibility determinations, but we independently review the trial court‘s ruling regarding whether, under those facts, a pretrial identification procedure was unduly suggestive.’ [Citation.] ‘Only if the challenged identification procedure is unnecessarily suggestive is it necessary to determine the reliability of the resulting identification.’ ” (People v. Alexander (2010) 49 Cal.4th 846, 902.)
Wilson argues that the photo lineup at issue was unduly suggestive because Detective Franks, aware that Wilson was a suspect in the case, steered Richards toward selecting Wilson. The trial court found no evidence of such steering. Although the record reflects that Detective Franks directed Richards to circle Wilson‘s photograph, the trial court noted this occurred after — not before — Richards had already selected that photograph. The court was also evidently unpersuaded by Wilson‘s argument that the detective‘s question, “What about number five?,” prompted Richards‘s selection. The record supports the trial court‘s apparent view. During the lineup, Detective Franks asked Richards, “What are you pointing to? Number five?,” suggesting that Richards was pointing to the photo before Detective Franks said anything about it. The detective then asked, “What about number five?,” apparently to prompt Richards to explain why he had pointed at the photo — not to prompt Richards to select the photo in the first place.
Wilson suggests that knowing number five was the suspect may have affected Detective Franks‘s administration of the photo lineup in other ways, causing him to unconsciously provide Richards with cues to select Wilson‘s photo and affecting the reliability of Richards‘s identification. (See State v. Henderson (N.J. 2011) 27 A.3d 872, 896 (Henderson) [describing the ” ‘expectancy effect’ ” in which even an administrator‘s “seemingly innocuous words and subtle cues . . . can influence a witness’ behavior“].)
To the extent Wilson argues that any nonblind lineup is inherently suggestive, case law does not support the argument, and we reject it. Wilson cites Henderson in support of the argument. But the court in Henderson did not hold that a nonblind lineup was unduly suggestive; it instead simply explained that an “ideal” administrator would not know who the suspect is. (Henderson, supra, 27 A.3d at p. 897.) This court,
Wilson claims the identification procedure in his case was also unduly suggestive because Richards viewed a group of six photographs simultaneously, rather than sequentially. He notes that other jurisdictions have found sequential lineups
Wilson also argues that it was unduly suggestive to show Richards two different lineups containing Wilson‘s picture. The argument fails because it rests on a factual premise that was never established at trial: that Detective Franks had, in fact, shown Richards the third lineup later discovered in the prosecution‘s files, even though Detective Franks testified he had not. (Cf. People v. Thomas (2012) 54 Cal.4th 908, 932 [when the defendant “merely speculates that [the witness] could have
Wilson contends that the lineup Richards did see was also unduly suggestive because Wilson was the lightest-skinned subject in the lineup. The record does not support the contention; Wilson‘s complexion was not obviously lighter than some of the others pictured. Moreover, Detective Franks advised Richards that the photographs might not depict the true complexion of the subject, which “may be lighter or darker than shown in the photo.”
Finally, Wilson argues that the trial court did not make a proper determination that the lineup was suggestive and did not apply the correct constitutional standard when admitting that evidence. Wilson emphasizes that in discussing the admissibility of the lineup, the trial court commented that there was not a sufficient showing that the identification was ” ‘worthless.’ ” As we have indicated, however, the trial court ruled that the lineup was not so “impermissibly suggestive as to violate due process“; the court also explained its conclusion. At any rate, we independently review the trial court‘s ruling (People v. Alexander, supra, 49 Cal.4th at p. 902), and have made our own determination that the identification procedure was not unduly suggestive.
b. In-court identification
Wilson also challenges the admission of Richards‘s in-court identification of him during the preliminary hearing.
At a hearing on whether to admit the preliminary hearing identification at trial, the prosecutor testified that he met with Richards before the preliminary hearing and showed him a copy of the photo lineup on which Richards had circled Wilson‘s picture. The prosecutor explained that he wanted to confirm the lineup was the one Richards had seen and bore his signature; it was among other photos and reports the prosecutor reviewed with Richards before his testimony. The prosecutor noted that during their meeting Richards was not sure whether he would be able to identify Wilson in court. In ruling that the identification was admissible, the court observed that the defense would be able to present evidence to demonstrate that during the in-court identification, Wilson was the only person seated at the defense table in jail clothing, and to raise other factors bearing on the reliability of the identification, such as Richards‘s inability to identify Wilson in a live lineup and
Wilson contends the prosecutor tainted Richards‘s preliminary hearing identification by showing Richards a copy of the photo lineup. Wilson argues that this was a suggestive pretrial procedure, citing People v. Contreras (1993) 17 Cal.App.4th 813. In Contreras, the witness failed to identify the defendant in a photographic lineup, was shown an individual photo of the defendant two days before the preliminary hearing, and then identified the defendant in court at the preliminary hearing. (Id. at p. 820.) The appellate court found the individual photo showup unduly suggestive. (Ibid.) Wilson argues that showing Richards a copy of the photo lineup was similarly suggestive. The court in Contreras, however, went on to hold that the witness‘s in-court identification was admissible because it was based on the witness‘s “independent recollection” rather than the suggestive photo lineup. (Id. at p. 821; see People v. Ratliff (1986) 41 Cal.3d 675, 689 [the taint of an unduly suggestive lineup “may be dispelled if the People show by clear and convincing evidence that the identification of the defendant had an independent origin“].)
Here, unlike in Contreras, Richards made an in-court identification after viewing a lineup that was not unduly suggestive. Furthermore, the prosecutor showed Richards the lineup, along with other photographs and documents, as part of the general preparation for Richards‘s testimony; there is no indication in the record that the prosecutor showed Richards the lineup in response to Richards‘s uncertainty about his ability to identify Wilson in court. But even assuming that seeing the marked-up copy of the lineup could have affected Richards‘s in-court identification, we conclude that, as in Contreras, the in-
Wilson argues that before allowing Richards‘s in-court identification, the trial court should have placed the burden on the prosecution to show that Richards had personal knowledge of Wilson‘s appearance and that Richards‘s opinion that Wilson was his attacker was rationally based on his perception.
In urging us to adopt this approach and hold that the trial court should have undertaken this inquiry, Wilson now relies heavily on the Oregon Supreme Court‘s decision in State v. Lawson, supra, 291 P.3d 673, which sets out foundational requirements for admission of identification testimony under Oregon statutory law. We have no occasion to address the argument because Wilson did not raise it in the trial court. It has therefore been forfeited.
c. Eyewitness identification instructions
Wilson claims that the trial court erred in instructing the jury with CALJIC No. 2.92, which directs jurors to “consider the believability of the eyewitness as well as other factors which bear upon the accuracy of the witness’ identification,” including “[t]he extent to which the witness is either certain or uncertain of the identification.” Wilson argues the instruction violated his federal and state due process rights.2
The jury instructions included CALJIC No. 2.92, which listed 12 factors to consider when assessing the accuracy of an eyewitness identification, including the “extent to which the witness is either certain or uncertain of the identification.”3 The
To evaluate Wilson‘s claim that the jury instruction resulted in the deprivation of federal due process, we consider the instruction in the context of the trial record and the instructions as a whole to determine whether the instruction ” ’ “so infuse[d] the trial with unfairness as to deny due process of law.” ’ ” (People v. Lemcke (2021) 11 Cal.5th 644, 655 (Lemcke).) In Lemcke, we explained that a similar reference to eyewitness certainty in CALCRIM No. 315 was ” ‘superficially neutral,’ ” in that it does not direct jurors to presume an identification is accurate if the eyewitness has expressed certainty, but we recognized that the certainty language had the potential to mislead jurors because it reinforced the common misconception that certainty is related to greater accuracy.
Wilson argues that Lemcke is not controlling here because he is raising a different claim: Rather than arguing that the instruction lowered the prosecution‘s burden of proof or interfered with the ability to present a defense on identity, he is arguing that the instruction “materially impair[ed] the jury‘s ability to accurately find facts regarding an identification‘s reliability.” Another reason is that this case, in Wilson‘s view, involves a different set of circumstances from Lemcke. Wilson contends that because Richards testified that he was “[v]ery certain” when he identified Wilson in court, there was a risk the
We are not convinced that this case calls for a different analysis or result from Lemcke. The claim Wilson now raises, about the interference with the jury‘s consideration of the issue of identity, arises from substantially similar circumstances as Lemcke, which likewise involved an eyewitness who testified as to the certainty of her identification despite circumstances giving rise to reasonable questions, and it rests on the same core argument as the claims we considered in Lemcke: that the certainty language in the eyewitness instruction created a risk that jurors would “infer that certainty is generally correlative of accuracy.” (Lemcke, supra, 11 Cal.5th at p. 657.) And, as in Lemcke, Wilson “was permitted to present” a substantial case “to combat that inference.” (Id. at p. 658.) The defense in Wilson‘s case vigorously challenged Richards‘s identification, directly challenged the discrepancy between Richards‘s expressed certainty and evidence that he had difficulty making an identification, and presented expert testimony explaining why eyewitness confidence is not the same as accuracy. As a result, the prosecutor acknowledged that Richards‘s identification standing alone was weak but gained strength from corroborating evidence. Contrary to Wilson‘s suggestion, this corroborating evidence was substantial and was not limited to testimony from Seeney and his girlfriend, whose motives the defense questioned. The evidence included, for instance, Wilson‘s connection to the firearm used in the robbery and attempted murder of Richards. Further, as in Lemcke, the jury received standard instructions on how to evaluate and weigh the
Wilson argues in the alternative that the instruction violated his state due process rights. As we have repeatedly recognized, the state Constitution affords independent protection from the federal Constitution. (See People v. Ramos (1984) 37 Cal.3d 136, 153 [invalidating the so-called Briggs Instruction in capital cases as “seriously misleading” and inconsistent with the fundamental fairness guaranteed by the state due process clause; disagreeing with the contrary holding of the United States Supreme Court under the federal due process clause].) Here, however, “listing the witness‘s level of certainty as one of [12] factors the jury should consider when evaluating an eyewitness identification” did not render Wilson‘s trial “fundamentally unfair” under either the state or the federal Constitution. (Lemcke, supra, 11 Cal.5th at p. 661.) To the extent that Wilson also asserts that the instruction was a violation of state law that did not rise to the level of constitutional error, he has not established it was “reasonably probable that the jury here was misled to [his] detriment.” (People v. Beltran (2013) 56 Cal.4th 935, 956.) As indicated, the prosecutor acknowledged that the defense succeeded in significantly undermining Richards‘s identification and urged the jury to convict Wilson on the basis of other evidence of his guilt that corroborated Richards‘s identification. It is not reasonably probable that the instruction caused jurors to rely instead on Richards‘s expression of certainty in reaching their verdict.
As we have discussed, the defense questioned the reliability of Richards‘s identification by presenting evidence that Richards may have viewed three photo lineups: one that did not contain Wilson‘s photo; a second from which Richards selected Wilson‘s photo; and a third, later found in the prosecution files, that also contained Wilson‘s photo. The defense theorized that the third photo lineup could have been shown to Richards before he saw the lineup from which he identified Wilson. As noted, however, Detective Franks testified that he never showed Richards the third photo lineup found in the prosecution‘s files. During the first trial, the defense attempted to impeach Detective Franks by presenting evidence of two work-related incidents involving dishonesty. At the retrial, however, the trial court excluded that impeachment evidence under
1. Background
In an interview with a defense investigator less than two weeks after he identified Wilson in a photo lineup, Richards explained that detectives showed him one lineup and, a couple of days later, came back and showed him a second set of pictures; he confirmed that he identified Wilson‘s photograph in the second lineup. During the preliminary hearing several months later and again in the first trial, Richards testified that he believed he viewed three photo lineups and did not identify anyone during the first two, though he also expressed some uncertainty about whether there were two or three lineups. In
In the first trial, the defense called Detective Franks to describe administering the photo lineup to Richards. Detective Franks did not take part in the first photo lineup, from which no identification was made. Detective Franks went alone to Richards‘s home to show him the second photo lineup, from which Richards identified Wilson. Detective Franks testified that he never showed Exhibit 147, the third photo lineup, to Richards because the supervising sergeant did not think it was a fair lineup.
During his testimony, the defense confronted Detective Franks with statements he made about administering the lineup that were later shown to be inaccurate. For example, in a prior proceeding Detective Franks said that he told Richards to take his time making his identification and denied commenting on position number five (Wilson‘s position). In a tape recording of the lineup, however, Detective Franks did not tell Richards to take his time and mentioned position number five multiple times, asking Richards if he was pointing to number five, for example, and telling him to circle number five after selecting it. The defense also asked Detective Franks about two instances of misconduct that had occurred in the previous year. Regarding the first incident, Detective Franks admitted that he had falsely claimed to be a detective from a
Before the retrial, the prosecution moved to exclude the evidence of Detective Franks‘s misconduct. The prosecutor argued the evidence of misconduct was unrelated to Detective Franks‘s work on Wilson‘s case; that it was “incendiary” and would distract the jury, “particularly jurors that have a resentment toward law enforcement or an inclination to believe that law enforcement does stuff like this all the time“; and that it would improperly discredit the entire law enforcement investigation. Defense counsel argued that the impeachment evidence was critical to the defense theory that Richards had been shown the third photo lineup and failed to select Wilson, undermining the value of his later photo identification. Without the impeachment evidence, Detective Franks would refute the defense theory by saying there were only two lineups “and the jury will then sit there without knowing that Detective Franks has done other things that are dishonest” and “will tend to believe him.” The trial court acknowledged the impeachment evidence had “some probative value” but nonetheless excluded the evidence out of concern that “if we dirty Detective Franks enough, maybe some of that dirt is going to rub off on other investigators or other officers that participated in this investigation when there‘s really no evidence that that was the case.”
The defense also presented evidence that Richards could have seen Wilson‘s image in the news before making his identification. Detectives on the case had prepared a “wanted” bulletin with Wilson‘s photo on it. The sergeant in charge of the investigation could not be sure whether it had been
2. Discussion
A witness may be impeached with evidence of a prior conviction or other conduct involving dishonesty or otherwise demonstrating moral turpitude, subject to the trial court‘s exercise of discretion under
Here, Wilson claims that excluding the evidence of Detective Franks‘s dishonesty constituted both an abuse of discretion under
Although the trial court has considerable discretion to decide whether to admit or exclude impeachment evidence (People v. Clark, supra, 52 Cal.4th at p. 932), it is questionable whether the trial court appropriately exercised its discretion to forbid the introduction of prior instances of Detective Franks‘s dishonesty. As an initial matter, the trial judge remarked that when he listened to the evidence in the first trial it did not seem particularly relevant. But the relevance of the evidence was not difficult to discern: To explain Richards‘s recollection of having seen three photo lineups and the existence of Exhibit 147, the defense theorized that Detective Franks could have shown Richards an unauthorized lineup and then lied about it to his supervisors and to the jury. Proof that the detective had recently flouted the constraints of his position and then lied
Ultimately, however, we conclude that any error in the trial court‘s decision to exclude the impeachment evidence is not grounds for reversal. Even assuming for the sake of argument that the trial court violated Wilson‘s constitutional rights as well as committing an error of state evidentiary law, the error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)
Despite the exclusion of evidence to impeach Detective Franks‘s testimony about the third photo lineup, the defense vigorously attacked the reliability of Richards‘s photo identification and continued to pursue the theory that Richards saw a photo of Wilson before identifying him. The defense presented evidence of a third lineup containing Wilson‘s photo, and although Detective Franks stated that he did not show it to
Given the other evidence of Wilson‘s responsibility for the crimes against Richards, any error in excluding the impeachment evidence was harmless beyond a reasonable doubt. On the night of the crimes — long before the photo lineups — Richards had described his assailant as a Black man in his 30s, about six feet tall and 220 pounds, with short hair and pock-marked skin. Wilson, who is Black, was 25 at the time, was just over six feet tall, weighed 225 pounds, and had short
In addition, there was considerable additional evidence to demonstrate Wilson‘s connection to the robbery and attempted murder of Richards. Evidence showed that the .22 pistol used against Richards was one of several guns taken in a home burglary and that Wilson later sold a rifle from the same stolen collection; in an interview with detectives after his arrest, Wilson admitted using a .22 pistol; Richards picked up his assailant across the street from the motel where Wilson‘s mother was living and Wilson had visited her just before that; authorities recovered Richards‘s abandoned taxicab one street
C. Seeney‘s Preliminary Hearing Testimony
Wilson raises a series of objections to the presentation of Seeney‘s preliminary hearing testimony at the retrial. Although the trial court did err in one respect, by excluding later out-of-court statements casting doubt on aspects of Seeney‘s preliminary hearing testimony, there was no reversible error.
Seeney was arrested and interrogated in Ohio before being transported to California and questioned further. During the Ohio interrogation, officers accused Seeney of lying when he claimed no knowledge of the murders under investigation; they stressed that he was facing decades of incarceration for the crimes and said that telling them what he knew was “the only thing that‘s going to save your butt.” Seeney made no inculpatory statements during the questioning.
Later, after Seeney was transported to California, detectives emphasized the potential of leniency, suggesting that Seeney might avoid punishment for violating his probation if he told them what he knew about the robbery murders. Detective Chris Elvert testified that he confronted Seeney with details about the murder weapon, a .44 revolver, and told Seeney about information Seeney‘s girlfriend, Phyllis Woodruff, had already provided.5 Specifically, Woodruff had said that Seeney was present when she saw Wilson with a large gun like a .44 revolver. During the interrogation, Detective Elvert told Seeney that if he were telling the truth, ” ‘[y]ou‘re going to see your brother with a gun.’ ” When Seeney responded, ” ‘what am I going to get out of this?’ ” Detective Elvert observed that Seeney was only being held on a probation violation and said the detectives were ” ‘still investigating to determine what happened.’ ” Detective Elvert stated that he had confronted Seeney with his girlfriend‘s statements because Seeney was ” ‘very cautious’ ” about providing information about his brother. The detective also acknowledged telling Seeney that he planned
Seeney eventually said that he had seen Wilson with a .44 revolver before the murders. He told the California detectives that he had been committing burglaries with Wilson and later pointed out the houses they had targeted; detectives were then able to verify burglaries and stolen property from those addresses. Seeney also claimed that Wilson told him that he planned to rob some cab drivers, that Wilson described his gun jamming when he tried to shoot one victim before taking his taxi, and that Wilson later admitted killing two other cab drivers.
Seeney testified for the prosecution at the preliminary hearing. At the hearing, Seeney appeared to be a reluctant witness. Much of the direct examination involved leading questions by the prosecution, which Seeney answered with brief affirmative responses. Seeney denied that Wilson made some of the incriminating statements the prosecutor sought to elicit, even though Seeney had previously repeated some of those statements when speaking to detectives. On cross-examination, Seeney stated that he felt the detectives had tried to scare him into cooperating. Detective Elvert testified that during Seeney‘s interrogation, detectives provided Seeney “small pieces of evidence” from the investigation to “encourage him to tell us the truth.”
Seeney testified that when first questioned, he lied to detectives when he denied knowing anything about the crimes; he was later willing to say that “maybe” he saw his brother with a .44 revolver after detectives told him they already learned that fact from Seeney‘s girlfriend. Seeney denied that Wilson
Ultimately, although Seeney backtracked on some of the information, Seeney testified that Wilson described several details from robbing and attempting to kill Richards and confessed the murders to Seeney on two occasions.
After the preliminary hearing but before the first trial, Wilson‘s investigator interviewed Seeney. The interview focused on Seeney‘s interactions with detectives during his interrogations in Ohio and California. When asked whether the detectives had pressured him to say things that were not true, Seeney answered, “Some of it. . . . [¶] . . . [¶] . . . I‘m not saying — he really didn‘t tell me a lot of — he didn‘t really tell me all them things. He didn‘t really tell me all of them.” The defense investigator then asked Seeney, “How did you know what to say?” and Seeney claimed that he had only repeated facts the detectives had given him about the investigation. When asked whether he gave truthful information about the guns and Wilson‘s statements, Seeney said that his girlfriend had already told detectives that she and Seeney had seen Wilson with a gun and had described it; Seeney told the defense, “So I‘m like — and, see, that‘s what really had me screwed right there. . . . I mean, she‘s saying I did, I mean, and we was all right there so, I mean, but — but, I mean, that‘s it.” The remainder of the interview focused on whether Seeney had seen
2. Asserted coercion
Because he invoked his Fifth Amendment privilege, Seeney was unavailable to testify for the trial or retrial.6 Before trial, Wilson moved to exclude Seeney‘s statements and preliminary hearing testimony. In particular, he argued that Seeney‘s statements to law enforcement officers were coerced. This coercion, he argued, tainted Seeney‘s preliminary hearing testimony because Seeney had entered an immunity agreement with the People based on his “anticipated” testimony. The trial court denied the motion and Seeney‘s preliminary hearing testimony was read during the trial and retrial. Wilson now contends the trial court erred in denying the motion.
“Defendants have limited standing to challenge the trial testimony of a witness on the ground that an earlier out-of-court statement made by the witness was the product of police coercion. Indeed, defendants generally lack standing to complain that a police interrogation violated a third party
When “assessing allegedly coercive police tactics, ‘[t]he courts have prohibited only those psychological ploys which, under all the circumstances, are so coercive that they tend to produce a statement that is both involuntary and unreliable,’ ” and have explained that “[w]hether a statement is voluntary depends upon the totality of the circumstances surrounding the interrogation.” (People v. Smith (2007) 40 Cal.4th 483, 501.) Here, drawing on People v. Brommel (1961) 56 Cal.2d 629, Wilson claims the interrogations were coercive because some officers threatened Seeney with a lengthy prison term and others offered him leniency. In Brommel, the defendant had
This case does not involve circumstances comparable to those in Brommel. Ohio officers accused Seeney of lying, emphasized the punishment Seeney could face for the crimes under investigation, and suggested he could avoid that fate by telling them what he knew. California officers similarly implied that Seeney could avoid some of his legal troubles by providing them with information about the crimes. Wilson adds that Seeney was 18 when he was interrogated, suggesting his youth made him more vulnerable to coercion. Under our precedent, however, none of the circumstances Wilson has identified amounts to unlawful coercion. We have said that officers may “exhort a suspect to tell the truth and repeatedly express that they believe a suspect is lying.” (People v. Battle (2021) 11 Cal.5th 749, 791.) Accusing Seeney of lying or withholding information, without more, did not “rise to the threshold necessary to taint the interrogation as unlawful.” (People v. Spencer (2018) 5 Cal.5th 642, 674.) Furthermore, there ” ‘is nothing improper in confronting a suspect with the predicament he is in, or with an offer to refrain from prosecuting the suspect if he will cooperate with the police investigation.’ ” (People v. Badgett (1995) 10 Cal.4th 330, 355.) ” ‘We have never held . . . that an offer of leniency in return for cooperation with the police
Wilson also asserts that Seeney‘s statements were coerced because the detectives told him what to say about seeing his brother with a gun. Wilson‘s argument refers to the exchange during which detectives recounted what Woodruff had already told them — including that Seeney was present when she saw Wilson with a large gun like a .44 revolver — and told Seeney that if he were telling the truth, “[y]ou‘re going to see your brother with a gun.” Wilson contends the detectives coerced his statement about seeing Wilson with a gun by using threats and promises ” ‘to establish a predetermined set of facts.’ ” “Threats of punishment for failure to conform a statement to the police theory . . . may constitute coercion and, under some circumstances, produce an unreliable statement.” (People v. Smith, supra, 4 Cal.5th at p. 1169.) Here, when Seeney hesitated to say he saw the gun and asked what he was going ” ‘to get out of this,’ ” Detective Elvert responded that Seeney was only being held on a probation violation and the detectives were ” ‘still investigating to determine what happened.’ ” But this response, and the detective‘s comment that he would tell Seeney‘s probation officer whether Seeney was telling the truth, was neither a threat nor a promise of leniency. Further, understood in context, it appears the detective‘s statement that “[y]ou‘re going to see your brother with a gun” was meant to
Wilson‘s primary argument concerns the admissibility in Wilson‘s retrial of the testimony Seeney ultimately gave at the preliminary hearing. Even if Seeney‘s interrogation were coercive, Wilson would have to show that any coercion carried over to Seeney‘s preliminary hearing testimony. (People v. Williams, supra, 49 Cal.4th at p. 453; People v. Smith, supra, 4 Cal.5th at p. 1170.) He has not made that showing.
Wilson relies on Seeney‘s immunity agreement, which he argues improperly pressured Seeney to repeat his assertedly coerced statements. (See In re Masters (2019) 7 Cal.5th 1054, 1085 [it is coercive “for an agreement to require that the witness testify consistently with a previous statement to the authorities“].) Certainly, the agreement contained no such express requirement. In the petition for an order granting Seeney immunity, the prosecutor did generally outline Seeney‘s anticipated testimony, which was based on the statements he had given detectives. But the immunity agreement itself merely
Wilson contends that Seeney nonetheless faced implicit pressure to conform his testimony to prior statements. To support the argument, Wilson points out that during the hearing on the motion to exclude his testimony, Seeney invoked his Fifth Amendment privilege against self-incrimination when asked whether his preliminary hearing testimony was true. Wilson suggests this episode shows that Seeney may not have given truthful testimony at the preliminary hearing. But even if we were to assume that to be the case, Wilson has not shown that the cause was implicit pressure to repeat what he had previously told detectives. Again, the immunity agreement required only that Seeney provide material, competent, and relevant testimony. “[A]lthough there is a certain degree of compulsion inherent in any plea agreement or grant of immunity” (People v. Allen (1986) 42 Cal.3d 1222, 1252), there is no indication Seeney was ” ‘under a strong compulsion to testify in a particular fashion’ ” (id. at p. 1251). For that reason, and because there was no evidence of prior coercion that could have rendered his testimony unreliable in any event (People v. Williams, supra, 49 Cal.4th at p. 453), admission of the testimony did not violate Wilson‘s rights to due process and a fair trial.
3. Admissibility of statements to the defense
During the retrial, Wilson sought to introduce a portion of Seeney‘s interview with a defense investigator in which Seeney claimed he had not seen Wilson with a gun as he testified in the preliminary hearing. The defense argued the statements were
The trial court rejected each of the defense arguments. Regarding whether the statements were against Seeney‘s interest, the trial court observed that members of the defense had not asked Seeney about his testimony; the focus of the interview was Seeney‘s interaction with the police and any fear and coercion he might have experienced. In that context, viewing the circumstances both objectively and from Seeney‘s perspective, the court reasoned that a person in Seeney‘s position would not have realized that his statements might subject him to charges of perjury. The trial court rejected Wilson‘s claim that the statements could come in for their truth as inconsistent statements because
Hearsay statements are generally inadmissible under state law (
“To demonstrate that an out-of-court declaration is admissible as a declaration against interest, ‘[t]he proponent of such evidence must show that the declarant is unavailable, that the declaration was against the declarant‘s penal interest when made and that the declaration was sufficiently reliable to warrant admission despite its hearsay character.’ [Citation.] ‘In determining whether a statement is truly against interest within the meaning of
Another exception to the general hearsay rule applies to statements that are inconsistent with a witness‘s trial testimony. (
On appeal, Wilson renews his argument that Seeney‘s statements were admissible as a declaration against interest.7 Wilson reasons that Seeney‘s statements amounted to an admission that he had lied at the preliminary hearing under oath. Setting aside the merits of the characterization for the moment, the pertinent question for purposes of
In the alternative, Wilson argues that Seeney‘s statements to the defense should have been admitted for impeachment purposes under
On the merits, we conclude that Seeney‘s statements to the defense were admissible impeachment under
Here, Wilson sought to impeach Seeney‘s former testimony with statements made to a defense investigator after the former testimony was given. Seeney indicated that he was
Although we hold the trial court abused its discretion in excluding the impeachment evidence, the error was one of state law and not a violation of Wilson‘s constitutional rights. Wilson claims that the exclusion violated his right to present a defense, which in turn infringed on his rights to a fair trial and reliable guilt and penalty determinations. “Under federal law, a denial of the right to present a defense occurs when . . . ‘[t]he exclusions of evidence . . . significantly undermined fundamental elements of the accused‘s defense.’ ” (People v. Capers (2019) 7 Cal.5th 989, 1008.) A court‘s application of ordinary rules of evidence generally does not impermissibly infringe on a defendant‘s right to present a defense. (People v. Fuiava (2012) 53 Cal.4th 622, 665–666.) Here, although the court erred in its application of the rules of evidence, its mistake — judging the admissibility of impeachment evidence according to the statutory standard applicable to testifying witnesses, as opposed to nontestifying hearsay declarants — is not the sort of mistake that significantly undermined fundamental elements of Wilson‘s defense. The error is unlike the cases on which Wilson relies, in which the exclusion of reliable hearsay entirely prevented the defendant from offering substantial evidence of another person‘s confession to the charged crime. (E.g., Chambers v. Mississippi (1973) 410 U.S. 284, 295; Green v. Georgia (1979) 442 U.S. 95, 96; see also Cudjo v. Ayers (9th Cir. 2012) 698 F.3d 752, 762.) We conclude that no federal constitutional violation occurred.
Wilson also claims that the exclusion of Seeney‘s statements violated his right to confrontation under the Sixth Amendment. The Attorney General contends that Wilson forfeited this argument by failing to raise his constitutional claim below. Even assuming the claim is preserved, Wilson has not established a Sixth Amendment violation. Restrictions on the impeachment of witnesses do not violate the confrontation clause when the jury would not have had a “significantly different impression” of the witness‘s credibility had the proffered evidence been allowed. (People v. Quartermain, supra, 16 Cal.4th at p. 624; see Delaware v. Van Arsdall (1986) 475 U.S. 673, 680.) Here, Seeney‘s statements to defense investigators did not paint a significantly different picture of his credibility than his preliminary hearing testimony. During his direct examination, Seeney denied that Wilson made some of the incriminating statements the prosecutor suggested, admitted lying to detectives, said that the detectives were trying to scare him into cooperating, and claimed that he only admitted seeing
Having concluded that the trial court committed state-law error in excluding the evidence of Seeney‘s interview with the defense investigator, we must next ask whether the error was prejudicial and therefore requires reversal. We conclude the answer is no; there is no reasonable probability the jury would have reached a different verdict had it been made aware of what Seeney told the defense investigator. (People v. Watson (1956) 46 Cal.2d 818, 836.)
Seeney‘s statements had limited impeachment value. The most significant statement was that Seeney had not seen Wilson with guns. But significant evidence in the record cast doubt on that assertion. Phyllis Woodruff testified that she helped Seeney and Wilson burglarize homes shortly before the murders and that among the items they stole were a number of guns. Seeney similarly admitted that he, Woodruff, and Wilson were committing burglaries together shortly before the murders. The .44 revolver used to commit the murders was part of collection of distinctive firearms that had been stolen in a burglary. Woodruff testified that she had seen Wilson with a .44 revolver and other guns that matched the description of the stolen cache, that Wilson said he had gotten the guns from burglaries, and
The remainder of Seeney‘s statement to the defense investigator was nonspecific, and thus of even less impeachment value. Seeney said that Wilson “didn‘t really tell me all them things,” and claimed that when speaking to detectives, he just endorsed some of the information they shared from their investigation. The implication of these statements — that Seeney may not have witnessed some of the facts he adopted when speaking to the detectives — reflected a credibility issue that was already apparent in Seeney‘s preliminary hearing testimony. Detective Elvert acknowledged providing Seeney with some information about the investigation to prompt Seeney‘s cooperation and Seeney testified that he only said he saw his brother with a gun once he knew detectives already had that information. Seeney denied knowing that Wilson admitted using Dominguez‘s cell phone; he also denied having knowledge of several facts related to the Richards robbery until confronted with prior statements inconsistent with those denials. In other words, Seeney‘s testimony about receiving some information from the detectives, and his denials and conflicting statements, already created uncertainty about whether Seeney personally witnessed some of Wilson‘s alleged statements and actions. An additional, vague remark that Wilson “didn‘t really tell me all
It is true, as Wilson says, that Seeney‘s testimony — that Wilson confessed to robbing and attempting to shoot Richards, confessed to shooting Dominguez and Henderson, and showed off a gun like the murder weapon — provided some of the only direct evidence of Wilson‘s guilt. But for each of the charges Wilson faced, there was also evidence of his guilt that did not depend on Seeney‘s testimony.
We have earlier described the evidence linking Wilson to the robbery and attempted murder of Richards. That evidence included Richards‘s description of his assailant immediately after the crimes, a description that resembled Wilson and not the other potential suspects. The weapon used against Richards was a .22 pistol that jammed. Evidence connected Wilson to a burglary in which that pistol was stolen; during his interrogation, Wilson also admitted having a .22. Richards picked up the perpetrator at a grocery store across the street from the motel where Wilson‘s mother lived, and Wilson visited his mother just before the robbery. The perpetrator drove away in Richards‘s taxicab, which was later recovered right near Wilson‘s apartment. And the rural location of the Richards robbery was familiar to Wilson because his grandparents lived nearby. Dominguez, the second victim, was killed in the same location a month and a half later and Wilson used Dominguez‘s cell phone just hours after he was murdered. Witnesses testified that Wilson wore a jacket and had injuries consistent with being the shooter eyewitnesses to the Henderson murder described. Evidence that Wilson shot Henderson and attempted to shoot Richards lent support to the theory that he shot Dominguez as
In sum, there is no reasonable probability that Seeney‘s statements to the defense would have meaningfully altered the reliance, if any, the jury placed on Seeney‘s testimony, as opposed to the other evidence pointing to Wilson‘s guilt.
D. Henry Woodruff‘s Testimony
At trial, Wilson unsuccessfully moved to exclude testimony from Phyllis Woodruff‘s father, Henry Woodruff, that Seeney told him that he did not want to leave the Woodruff home with Wilson because Wilson was “doing wrong” and Seeney did not want to violate his probation. Wilson contends the admission of the testimony violated both state evidence law and his constitutional right to a fair trial. We reject the argument.
Before Henry Woodruff‘s testimony, the defense objected to the prosecution eliciting any description of statements from Seeney to Woodruff, arguing that they were inadmissible hearsay. The prosecutor responded that the statements were not being offered for their truth but were relevant to show Seeney‘s state of mind and conduct. The trial court overruled the defense objection, observing that even if the statements were hearsay, they would be admissible to show Seeney‘s conduct in conformance with his then-existing state of mind. Woodruff then testified that at the time of the charged murders, Seeney had been staying on the couch in the Woodruff home where his girlfriend, Phyllis Woodruff, also lived. During a Woodruff family barbeque the day before the murders, Wilson arrived at the Woodruff home to pick up Seeney, but Seeney told Henry Woodruff that he did not want to leave with Wilson because Wilson was “doing wrong” and Seeney did not want to violate
As relevant here,
Wilson argues that Seeney‘s state of mind was not relevant to any issue in dispute. As the trial court noted, however, Seeney‘s stated concerns about Wilson‘s activities tended to “prove or explain acts or conduct” (
Acknowledging that Seeney‘s conduct was relevant as “an alleged alternative perpetrator[],” Wilson argues Seeney‘s statements were nonetheless inadmissible to explain his state of mind and related conduct because their relevance depended on his statements being true, that Wilson actually was engaged in wrongdoing. If Seeney‘s statement was admissible hearsay under a then-existing state of mind exception (
Wilson argues that even if Seeney‘s statements had a relevant, nonhearsay purpose, they were inadmissible under
E. Wilson‘s Interview with California Detectives
Wilson argues the trial court erred in admitting a videotaped interview with California detectives, which he claims was conducted after he invoked his Fifth Amendment right to remain silent. We conclude there was no error.
After his arrest, Wilson twice spoke to officers about his involvement in the robberies and murders under investigation: once in Ohio, shortly after the arrest, and then in California a day later. In Ohio, detectives advised Wilson of his rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). Wilson initially agreed to speak to the detectives. One of the detectives testified that he believed Wilson later invoked his right to remain silent but continued questioning him anyway.
A day later, Wilson flew with detectives to California. Detective Jay Hagen, one of the detectives who flew with Wilson, testified that during a refueling stop Wilson said that he might want to talk about the case and asked whether his statement could remain confidential if he decided to say something. Detective Hagen advised Wilson to wait until they arrived in California. Once in California, Detective Hagen and another detective met with Wilson. Detective Hagen made it clear that Wilson‘s statements would not be confidential and there was some additional discussion regarding Wilson‘s concern about providing information. Upon learning that he was being held on a prior hit-and-run charge, Wilson stated, “Let‘s put that to the side, man. I mean, what‘s going on with these other things?” — apparently referring to the recent robberies and killings. Detective Hagen said there was information tying Wilson to those crimes and told Wilson he wanted to find out if Wilson had an explanation for his involvement.10
Wilson then told the detective, “I‘m not discussing it any no further until I talk to the DA, man.” When informed the prosecutor was not interested in speaking with him, Wilson reiterated that he was not “going to discuss it further. I mean, I‘m was [sic] trying to be cooperative with you.” The detective encouraged Wilson to take the opportunity to say what he knew “right now,” before his “partner” got a deal with the prosecutor. The detective also told Wilson that he had “[n]o doubt [Wilson] did it.” Wilson responded that, if there was no doubt, “we don‘t need to talk no more” and he asked the detectives to take him back to his holding cell. Just before they left the interview room, the detective stated, “You say you wanted to cooperate. I know there‘s somebody else involved.” As they exited the room, Wilson asked for a cigarette.
Without explanation the interview resumed, with Wilson again talking about his concern for his family. The detective eventually suggested that Wilson could name the person responsible for the murders and “we‘ll open the door, you‘re out of here.” Wilson said, “they know who the fuck he is” and indicated there were other government actors trying to catch him. Wilson then referred to his brother again, stating he did not think the detectives had any evidence against Seeney.
Wilson guessed that he was the only suspect; he said, “True enough I told you I rented the car, I used the phone,” “I allowed this particular person to use that vehicle more than once,” and “if he has some buddies or something like that and they went on a killing spree, . . . I don‘t know.” The detective
The detective tried to engage Wilson in whether he or his “homeboy” pulled the trigger during the murders. The detective suggested a scenario in which Wilson was with a buddy who robbed and killed someone out of the blue and then insisted on doing another one, to make sure Wilson would not rat. Wilson said, “In other words, drop a dime, snitch.” Wilson would not snitch but said there was a witness on the street. The detective and Wilson talked about how much Seeney might have said about the events, but the detective would not mention specific information about the case. Wilson said the detectives would eventually have to give the information to his lawyer and the conversation turned to when Wilson would get a lawyer and what his bail was.
Wilson made it clear he understood that his statements could be used against him, stating, “You know damn well as much as I know everything I say in this room is going to be held against me in that damn courtroom.” The detective reminded Wilson that he could have an attorney, and Wilson said that he wanted one “right now.” The detective said they did not have an attorney for Wilson but would stop talking about the case. Wilson responded, “Is that what you want?” Wilson said he was hungry and suggested getting something to eat, “so we can
In the remaining interview, Wilson told the detective that he always carried a gun when he went to San Bernardino but denied ever carrying a large caliber weapon. Wilson would not give the name of the person he knew was involved in the murders but said that Detective Franks had mentioned the name and “hit that thing on the nose.” The detective asked where the person lived, prompting, “where Sarah and Tiffany dropped you off?” Wilson said that “Sarah knows the dude” and “[y]ou got your man.”
Wilson filed a motion to suppress all of the statements made to detectives in Ohio and in California. The trial court granted Wilson‘s motion to suppress statements he made during the Ohio interrogation after the detective disregarded his expressed desire to stop answering questions. But the court admitted the interview with detectives in California. The trial court found that Wilson had been advised of, understood, and waived his Miranda rights in Ohio, and further noted that during the California interview Wilson recited his rights back to the detectives. The court concluded that Wilson initiated the California interview during the refueling stop by telling Detective Hagen he wanted to talk and that it was clear Wilson understood that by talking to the detectives he was waiving his right to remain silent. The court further held, contrary to
The trial court characterized the California interrogation as a “chess game, where each side was trying to obtain damaging information from the other” and observed that “[f]or the most part, neither side budged, although the defendant did admit to using one of the murder victim‘s cellular phones . . . , and did admit to having a small caliber handgun within two to three weeks prior to the murders.” The trial court noted several places in the interview where the defense claimed Wilson had invoked his right to remain silent. The court observed, however, that Wilson‘s willingness to talk contradicted his claim that he invoked his Fifth Amendment privilege.
During the retrial, defense counsel brought another motion to suppress Wilson‘s statements because he had overlooked the significance of the cigarette break and the unexplained resumption of the interview; he sought to exclude the statements Wilson made after the break.
The trial court held a hearing focused on the unrecorded break. Detective Hagen testified that after he and Wilson left the interview room, they stopped to smoke and Wilson initiated further discussions about the case. Wilson again stated that he was concerned for his family‘s safety if he told the detectives what he knew about the murders and continued to ask questions in an effort to learn what the investigation had uncovered. Detective Hagen said that he answered Wilson‘s questions as best he could without giving him details about the investigation; it was the same type of exchange that characterized the interview before the break. When they finished smoking, Detective Hagen asked Wilson if there was anything else to
Defense counsel argued that suppression was warranted because, “[p]utting aside all the other loquacious behavior of Mr. Wilson,” the detectives were not able to describe in detail how Wilson initiated conversation about the case during the break; acknowledged that they had been trained to continue questioning after a defendant‘s invocation for impeachment purposes; and failed to document any reinitiation by Wilson in their reports. Counsel asserted that the proper inference to draw was that the detectives felt they were questioning outside of Miranda.
The trial court denied the motion, crediting Detective Hagen‘s testimony that Wilson initiated the conversation during the break and concluding that “nothing really changed from all of the other times that [Wilson] had seemingly not wanted to talk, but then kept on with the interview.” At the retrial, the prosecution played the video recording of Wilson‘s California interrogation for the jury.
2. Discussion
“The Fifth Amendment provides, ‘No person . . . shall be compelled in any criminal case to be a witness against himself . . . .’ (
After ” ‘a defendant has waived his Miranda rights and agreed to talk with police, any subsequent invocation of the right to counsel or the right to remain silent must be unequivocal and unambiguous.’ ” (People v. Hoyt, supra, 8 Cal.5th at p. 931.) If a defendant has unambiguously invoked the right to remain silent, the interrogation must stop. (People v. Krebs (2019) 8 Cal.5th 265, 313.) We have never held, however, “that an initial failure to honor a defendant‘s invocation — whether of the [right] to remain silent or the right to have counsel present — poses a categorical bar to the admission of any subsequent statement regardless of the circumstances.” (Id. at p. 314.) Even when law enforcement initially fails to honor a Miranda invocation, we have held that “a voluntary confession obtained during a subsequent interrogation is admissible.” (Ibid.)
When reviewing the trial court‘s denial of a suppression motion alleging a Miranda violation, ” ‘it is well established that we accept the trial court‘s resolution of disputed facts and inferences, and its evaluations of credibility, if supported by substantial evidence. We independently determine from the undisputed facts and the facts properly found by the trial court whether the challenged statement was illegally obtained.’ ” (People v. Gamache (2010) 48 Cal.4th 347, 385.) The question whether the defendant or the police reinitiated communications after a defendant‘s invocation of rights “is predominantly factual. [Citation.] Accordingly, we review it for substantial evidence.” (Ibid.)
Wilson next argues that the trial court erred in admitting statements he made to detectives after the break when he was outside smoking with Detective Hagen. As Wilson notes, Detective Hagen agreed to end the interview in response to Wilson‘s statement that he was not going to discuss the case
What followed, however, was a short break in which the trial court concluded that Wilson reinitiated discussion about the case. When a suspect freely decides to reinitiate communication, the law does not foreclose the admission of subsequent statements, notwithstanding an earlier failure to honor an invocation of the Miranda rights to silence or to counsel. (People v. Krebs, supra, 8 Cal.5th at p. 315.)11
F. Motion for New Trial
After the jury returned its penalty verdict, Wilson filed a new trial motion in which he argued that his lawyer prevented him from testifying in violation of his Sixth Amendment rights. The trial court denied the motion. Wilson argues this was error. We find no merit to the claim.
In a hearing on alternate counsel‘s new trial motion, defense counsel testified that he had been practicing criminal law for over 35 years, that he understood Wilson‘s constitutional right to testify, and that he had never denied Wilson his right to testify. Counsel denied telling Wilson “in emphatic, conclusive terms that he was not going to testify in the case“; instead, counsel stated that he had conversations in which he recommended that Wilson not testify.
As an initial matter, the trial court questioned whether Wilson‘s request to testify was timely, coming as it did after the jury had returned its verdicts. The court noted that Wilson “has never been shy about speaking or letting his requests be known” and that neither Wilson nor his counsel alerted the court to any conflict they had about Wilson wanting to testify. In any event,
“A criminal defendant has the right to testify at trial, ‘a right that is the mirror image of the privilege against compelled self-incrimination and accordingly is of equal dignity.’ [Citations.] ‘The defendant may exercise the right to testify over the objection of, and contrary to the advice of, defense counsel. [Citations.] “When the decision is whether to testify . . . at the guilt phase of a capital trial [citation] it is only in case of an express conflict arising between the defendant and counsel that the defendant‘s desires must prevail. . . . [T]here is no duty to admonish and secure an on the record waiver unless the conflict comes to the court‘s attention.” ’ ” (People v. Duong (2020) 10 Cal.5th 36, 55.)
Here, Wilson does not claim that he had an express conflict with his trial attorney over whether he would testify. Instead, he contends the trial court had an obligation, before ruling on his motion for a new trial, to determine whether Wilson made a knowing and intelligent waiver of his right to testify during the retrial. Wilson did not raise this issue in the trial court, and it appears to be forfeited. The claim also lacks merit.
It has long been the rule that, absent an express conflict, ” ’ “[a] trial judge may safely assume that a defendant, who is ably represented and who does not testify is merely exercising
G. Speedy Trial Rights
Wilson contends the trial court abused its discretion, and violated his state and federal constitutional rights to a speedy trial, when it found good cause to continue the trial over his objection. We find no error.
Wilson was arrested on March 3, 2000, and his trial attorney was appointed the same month. After accepting several continuances, in October 2001 Wilson refused to agree to a 90-day continuance his attorney had sought; instead, invoking his speedy trial rights, he waived time for just 30 days. In keeping with Wilson‘s 30-day waiver, the court set trial for December 3, 2001. Then, in a written motion for continuance, defense counsel sought a trial date of March 4, 2002. Counsel explained that he was preparing the defense of another client facing capital charges and needed additional time to
At a hearing on the continuance motion, Wilson again refused to waive time and asserted that his constitutional rights were being violated. Wilson stated that the 18 months that had elapsed since his case began was adequate time to prepare his defense. The trial court granted the continuance over Wilson‘s objection. The court noted that since Wilson did not want to waive further time, counsel was going to have to “devote his full efforts preparing for this case. But I think I have to give him a reasonable time to prepare, and again I think it would be in your best interests to allow him to do that.” Trial began on March 4, 2002.
“A criminal defendant‘s right to a speedy trial is guaranteed by the Sixth Amendment to the federal Constitution and
Wilson argues that “[a]n attorney‘s work for other clients cannot form a valid basis for overriding appellant‘s speedy trial rights.” (Italics omitted.) Likening his case to People v. Johnson (1980) 26 Cal.3d 557, Wilson claims he was entitled to dismissal of the charges because systemic flaws, including lack of personnel in the Public Defender‘s office, prevented his attorney from preparing for his trial within the statutory time period. In Johnson, postponements over the defendant‘s objection “were not sought nor granted to serve the best interest of the defendant; they stem[med] from calendar conflicts of the public defender, and the decision of the public defender and the court to resolve these conflicts by trying other cases in advance of that of defendant.” (Id. at p. 566.) We held that the record did not demonstrate good cause for a continuance because the trial court “accepted the public defender‘s recital of conflicting obligations without inquiring whether the conflict arose from exceptional circumstances or resulted from a failure of the state to provide defendant with counsel able to protect his right.” (Id. at p. 573.)
Unlike Johnson, this case does not involve delay stemming from calendar conflicts unrelated to Wilson‘s best interests. Although counsel assumed the trial of another client would precede Wilson‘s, the trial court conditioned the continuance on counsel devoting his “full efforts” to preparing Wilson‘s case and found that preparation was in Wilson‘s best interest. Although Wilson blames a systemic breakdown for counsel‘s delay in completing his preparation, the record does not contain facts about the public defender system that would allow us to evaluate this assertion. (People v. Williams (2013) 58 Cal.4th 197, 249.) Instead, Wilson‘s circumstances appear more like those we have found to present “a classic confrontation between defendant‘s statutory and constitutional rights to a speedy trial and his Sixth Amendment right to competent and adequately prepared counsel.” (People v. Lomax, supra, 49 Cal.4th at p. 556.) As in Lomax, the balance here favored a reasonable time for counsel to prepare for a capital trial (ibid.), and the duration of the delay was limited; after Wilson invoked his right to a speedy trial, counsel sought, and the trial court granted, only one continuance. There was no abuse of discretion in finding good cause for the continuance under
Wilson also claims that delay in bringing his case to trial violated his federal speedy trial right. To determine whether there has been a federal violation, we consider the four-part balancing test established in Barker v. Wingo (1972) 407 U.S. 514: ” ‘whether delay before trial was uncommonly long, whether the government or the criminal defendant is more to blame for that delay, whether, in due course, the defendant asserted his right to a speedy trial, and whether he suffered prejudice as the delay‘s result.’ ” (People v. Williams, supra, 58 Cal.4th at p. 233.) Wilson has not carried his burden of demonstrating a speedy trial violation under this test.
“Whether defendant suffered prejudice as a result of the delay must be assessed in light of the interests the speedy trial right was designed to protect: ‘(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.’ ” (People v. Williams, supra, 58 Cal.4th at p. 235.) “Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.” (Barker v. Wingo, supra, 407 U.S. at p. 532.) Here, Wilson claims that “awaiting trial while his life hung in the balance inevitably produced great anxiety.” “[D]espite the oppressive nature of pretrial incarceration and the anxiety it produces,” Wilson does not “demonstrate specific prejudice resulting from the delay” and “he cannot benefit from a presumption of prejudice because the record does not show that the state was responsible for the delay.” (Williams, at p. 252.)
Considering “the totality of the Barker factors” (People v. Williams, supra, 58 Cal.4th at p. 252), we conclude that Wilson‘s federal right to a speedy trial was not violated.
Wilson claims that several guilt phase jury instructions violated his right not to be convicted ” ‘except upon proof beyond a reasonable doubt,’ ” thus violating his constitutional rights to due process and trial by jury. Wilson acknowledges that we have rejected similar claims, holding that CALJIC No. 2.01 does not undermine the reasonable doubt requirement (People v. Wright (2021) 12 Cal.5th 419, 455) and that CALJIC Nos. 2.21.2, 2.22, 2.27, and 8.20 do not urge the jury to decide material issues by determining which side had presented relatively stronger evidence (People v. Bloom (2022) 12 Cal.5th 1008, 1056). We decline his request to reconsider our prior rulings.
I. Cumulative Error
We have assumed or found three errors. We have assumed that an instruction listing eyewitness certainty as a factor in assessing the accuracy of Richards‘s identification was a potential error under state law and that the trial court erred when it excluded evidence to impeach testimony about Richards‘s photo identification. We concluded, however, that it was not reasonably probable that the instruction misled the jury to Wilson‘s detriment and that exclusion of additional evidence to challenge the reliability of the photo identification was harmless, in part because of defense counsel‘s already successful efforts in that regard. We also found that the trial court erred when it excluded certain statements Seeney made to the defense that were purportedly inconsistent with his former testimony read into the record at the retrial. But we found it was not reasonably probable that evidence of Seeney‘s statements would have significantly altered the jury‘s view of Seeney‘s former testimony, or, ultimately, its conclusion that Wilson was guilty of the charged crimes. Having found these assumed or found
J. Challenges to California‘s Death Penalty Statute
Wilson raises a number of challenges to California‘s death penalty statute, all of which we have previously considered and rejected. We decline to reconsider the following holdings.
“Nothing in the federal Constitution requires the jury, at the penalty phase, to make written findings; to unanimously agree that particular aggravating circumstances exist; or to find beyond a reasonable doubt that aggravating factors exist, that aggravating factors outweigh mitigating factors, or that death is the appropriate sentence.” (People v. Jones (2017) 3 Cal.5th 583, 618–619.) The high court‘s decisions in Apprendi v. New Jersey (2000) 530 U.S. 446, Ring v. Arizona (2002) 536 U.S. 584,
The state death penalty scheme does not violate the federal Constitution by forgoing intercase proportionality review, does not violate equal protection by treating capital and noncapital defendants differently, and does not violate international law and norms. (People v. Salazar (2016) 63 Cal.4th 214, 257.) The exercise of prosecutorial discretion in different counties does not violate equal protection; Bush v. Gore (2000) 531 U.S. 98 does not require otherwise. (People v. Brady (2010) 50 Cal.4th 547, 589.)
III. MOTION FOR A STAY AND LIMITED REMAND
While Wilson‘s appeal was pending, the Legislature passed the California Racial Justice Act of 2020 (Stats. 2020, ch. 317, § 1) (RJA or the Act), which provides statutory authority for defendants to challenge criminal proceedings on the basis of racial, ethnic, or national origin discrimination. As later amended, the RJA applies to cases involving a death sentence, as well as to all cases in which the judgment is not yet final. (
Wilson‘s primary argument is that, under the RJA, good cause for a stay of a pending appeal is automatically established whenever a defendant signals an intent to raise a colorable RJA claim in superior court, as he has done here. In effect, he argues that the RJA establishes an across-the-board rule authorizing automatic stays of all pending criminal appeals for litigation of RJA claims based on evidence outside of the appellate record. We understand the statute differently. While the RJA refers to a defendant‘s ability to move for a stay of appeal and remand, the statute does not establish a rule of automatic stays. As in other contexts in which courts have employed a stay-and-remand procedure, good cause for an appellate stay in this
To evaluate the question of good cause in this case, we clarify at the outset that a stay and remand is not legally necessary to allow an appellant to raise RJA claims that are unrelated to the appeal. Under both the RJA and long-settled principles of law, appellants are entitled to file a concurrent habeas corpus petition raising extrarecord RJA claims in superior court, regardless of where the proceedings stand in the appeal. (
We recognize that even when there is no legal impediment to pursuing RJA claims while an appeal remains pending, there may be practical reasons in a particular case why the usual appellate process must be altered to ensure timely and effective access to RJA remedies. Here, however, Wilson has not shown that delaying the resolution of this appeal is necessary to afford him a full, fair, and timely opportunity to litigate his RJA claims in superior court. We therefore deny his motion to stay the appeal and to order a limited remand.
A. The California Racial Justice Act
The Legislature passed the RJA in 2020 with a stated aim “to eliminate racial bias from California‘s criminal justice system” and “to ensure that race plays no role at all in seeking or obtaining convictions or in sentencing.” (Stats. 2020, ch. 317, § 2, subd. (i).) To that end, the RJA prohibits the state from seeking or obtaining a criminal conviction, or seeking, obtaining, or imposing a sentence, on the basis of race, ethnicity, or national origin. (
The central provision of the RJA,
The statute also provides that if a habeas petition makes a prima facie showing of entitlement to relief under the Act, the trial court must issue an order to show cause and hold an evidentiary hearing. (
When it was first passed, the RJA applied only prospectively, to cases in which judgment had not yet been entered as of the Act‘s effective date of January 1, 2021. (
In 2023, the Legislature further amended the RJA to provide additional guidance about how an RJA claim may be raised. As originally enacted, section 745, subdivision (b) provided that a “defendant may file a motion in the trial court or, if judgment has been imposed, may file a petition for writ of habeas corpus or a motion under Section 1473.714 in a court of competent jurisdiction, alleging a violation of subdivision (a).” As amended by Assembly Bill No. 1118 (2023–2024 Reg. Sess.) (Assembly Bill 1118), which became effective on January 1, 2024, the statute now specifies that a defendant “may file a motion pursuant to this section, or a petition for writ of habeas corpus or a motion under Section 1473.7, in a court of competent jurisdiction, alleging a violation of subdivision (a). For claims based on the trial record, a defendant may raise a claim alleging a violation of subdivision (a) on direct appeal from the conviction or sentence. The defendant may also move to stay the appeal and request remand to the superior court to file a motion pursuant to this section.” (
B. Wilson‘s Motion
Wilson outlines two potential claims. First, Wilson, who is Black, says that his defense investigator learned that during penalty phase deliberations one of the jurors referred to mitigating evidence of abuse and neglect in Wilson‘s background as ” ‘cultural.’ ” In the presence of other jurors, she argued that many children in Black families were raised under similar conditions and did not go on to commit murder. Wilson represents that he intends to present this evidence of the juror‘s comments, as well as lay and expert evidence to show that these comments violated the RJA‘s prohibition on racially discriminatory language (
Second, Wilson asserts that there are significant racial disparities in both charging and sentencing in San Bernardino, his county of conviction. He contends that he will be able to show good cause for disclosure of additional evidence to prove a violation of the RJA based on racially disproportionate practices related to his charging, conviction, and sentence. (
C. Discussion
Wilson‘s request for a stay and remand relies on
1. Legal background related to the stay-and-remand procedure
Section 745 provides three vehicles by which a defendant may raise an RJA claim. The defendant may raise an RJA claim by motion (
With the Assembly Bill 1118 amendments to section 745, subdivision (b) the Legislature did not create a new vehicle for raising RJA claims. Instead, evidently aware that “questions have been raised as to whether habeas petitions are the exclusive avenue for a post-conviction RJA challenge” (Assem. Com. on Public Safety, Analysis of Assem. Bill No. 1118 (2023–2024 Reg. Sess.) as amended Mar. 15, 2023, p. 6), the Legislature clarified that other types of post-judgment filings are also, in some cases, permissible. As relevant here, the Legislature clarified that defendants may seek to invoke a stay-
The stay-and-remand procedure derives in the first instance from the authority to order a limited remand under
But typically when a court orders a remand — limited or otherwise — it does so to permit further proceedings concerning an issue raised on appeal, as part of its resolution of that appeal. (
The stay-and-remand approach was first applied in People v. Awad (2015) 238 Cal.App.4th 215. In that case, defendant Awad sought to raise a claim under Proposition 47, legislation that reclassified certain felonies as misdemeanors, after he had already filed an appeal of the criminal judgment against him. (Awad, at p. 218.) Under the new law, eligible offenders could file a petition in the trial court for recall of the sentence and resentencing according to the amended guidelines. (
Since Awad, the stay-and-remand procedure has gained general acceptance in our courts. In People v. Martinez (2019) 31 Cal.App.5th 719, for instance, the court discussed the possibility of granting a stay and remand in cases involving a different criminal justice reform measure, Senate Bill No. 1437 (2017–2018 Reg. Sess.), which narrowed the scope of the felony murder rule and eliminated murder liability under the natural and probable consequences doctrine. (Martinez, at p. 729.) Similar to the law in Awad, Senate Bill No. 1437 provided that eligible individuals may gain relief by filing a petition in the trial court to have their conviction vacated and to be resentenced. (
Responding to concerns about unnecessary delay in resolving petitions under
We presume that when the Legislature added the stay-and-remand language now found in section 745, subdivision (b), it meant to draw on the procedure employed in Awad and discussed in other cases, under which a court may find good cause to stay a pending appeal and remand the case to the trial court to permit the appellant to pursue alternative forms of relief. (See People v. Frahs (2020) 9 Cal.5th 618, 634 [“the Legislature ‘is deemed to be aware of existing laws and judicial constructions in effect at the time legislation is enacted’ “].) The legislative history bears this out. Addressing the provision in its analysis of Assembly Bill 1118, the Assembly Committee on Public Safety explained that although a trial court generally loses jurisdiction once an appeal is filed, a stay-and-remand procedure had been permitted by courts in other post-judgment relief contexts. The committee referred specifically to Martinez‘s observation that an appellate court could order a stay and limited remand if the court finds good cause to do so. (Assem. Com. on Public Safety, Analysis of Assem. Bill No. 1118,
Although it relied on an existing procedure developed to effectuate other remedial legislation, the Legislature also indicated that it meant for the availability of the stay-and-remand procedure to serve the specific concerns of the RJA. The Legislature envisioned that the stay-and-remand procedure would “ensure that the basic civil rights protections provided by the RJA can be accessed in an efficient and effective manner” (Sen. Com. on Public Safety, Analysis of Assem. Bill No. 1118 (2023–2024 Reg. Sess.) as amended May 18, 2023, p. 9), and would help to address problems arising in that context, such as the shortage of qualified habeas counsel in capital cases (see id., p. 6 [a stay and remand is important to capital litigants who lack access to qualified habeas counsel]).
With this background in mind, we infer that when the Legislature referred to motions for a stay and remand in section 745, subdivision (b), it intended that RJA litigants would be able to address concerns specific to the RJA by invoking the procedure courts have developed in other contexts to facilitate prompt adjudication of alternate claims of relief where there is good cause to deviate from the usual course of appellate adjudication. The parties do not dispute this premise. Their disagreement instead centers on what constitutes good cause for a stay and remand in the RJA context. We turn to that subject next.
As noted, Wilson‘s primary argument is that good cause is necessarily established, and a stay and remand required, whenever a defendant raises a plausible claim that an RJA violation could or might have occurred. Wilson contends the standard for finding good cause for a remand that delays final adjudication of the appeal is the same standard the court in Young v. Superior Court (2022) 79 Cal.App.5th 138 adopted for determining when a defendant has shown good cause to obtain discovery under the RJA. Drawing on the standard for obtaining discovery of law enforcement personnel records under Pitchess v. Superior Court (1974) 11 Cal.3d 531, the court held that to show “good cause” for discovery under the RJA, “a defendant is required only to advance a plausible factual foundation, based on specific facts, that a violation of the Racial Justice Act ‘could or might have occurred’ in his case.” (Young, at p. 159.) This standard for obtaining discovery, the court concluded, “should not be difficult to meet.” (Id. at p. 161.) Here, Wilson contends — and the dissent agrees (dis. opn. of Evans, J., post, at p. 7.) — that this court should stay his appeal and order a remand for RJA proceedings because he has ” ‘advance[d] a plausible factual foundation, based on specific facts, that a violation of the Racial Justice Act “could or might have occurred” in his case.’ ”
The Attorney General counters that the standard for finding good cause to order discovery in an RJA case is not an appropriate standard for determining whether there is good cause to delay the final resolution of an appeal of a criminal judgment. In the Attorney General‘s view, it is not enough merely to identify a plausible claim under the RJA; the question should instead be “whether the balance of the competing
We agree that the good cause inquiry is not limited to whether the defendant seeks to litigate a colorable claim in an alternative forum, but instead takes into account all relevant circumstances and interests that counsel for and against a stay of appellate proceedings while that litigation occurs. A stay and remand is a significant departure from the usual process of adjudication and carries with it significant risks of disruption and delay. For that reason, courts have uniformly understood that good cause must be based on the particular circumstances and interests at stake. The fact that an appellant may have other, colorable claims that could be raised in a different forum has never been thought sufficient, standing alone, to justify halting the adjudication of a pending appeal.
Section 745, subdivision (b) contains no indication that the Legislature intended to prescribe a different approach. The amended version of the provision simply makes clear that a defendant “may also move to stay the appeal and request remand to the superior court.” (
To the extent the language of the statute admits of any doubt on this point, the legislative history contains no indication that section 745, subdivision (b) was intended to curtail courts’ traditional ability to consider all relevant circumstances in determining whether to grant an appellate stay. As noted, it is clear the Legislature was aware of the stay-and-remand procedure as it had been invoked in recent cases involving post-
The plausibility of Wilson‘s RJA claims is certainly a relevant consideration: Whether defendants are potentially eligible for the benefits they seek to pursue on remand is an important threshold consideration in determining whether there is good cause to grant a request for a stay and remand. (Cf. People v. Awad, supra, 238 Cal.App.4th at p. 221 [noting that defense counsel represented that Awad was eligible for Prop. 47 resentencing].) But it is not the only consideration relevant to the good cause inquiry. As courts have recognized in other contexts, a court must consider whether there are unusual circumstances that give rise to pressing concerns warranting a departure from the usual conduct of an appeal — such as the necessity of preserving a defendant‘s rights under newly enacted laws and the importance of alleviating delay in accessing potentially significant benefits, as in Awad — as well as
This inquiry also takes into account the nature of the rights involved. The central purpose of the RJA is to provide meaningful remedies for proven racial discrimination in the administration of criminal justice, and thus to eliminate racial bias in California‘s criminal justice system. And through the amendments to the statute, the Legislature has made clear the importance of ensuring “‘efficient and effective‘” access to these remedies. (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 1118 (2023–2024 Reg. Sess.) as amended May 18, 2023, p. 6; see also Assem. Conc. Sen. Amends. to Assem. Bill No. 1118 (2023–2024 Reg. Sess.) as amended May 18, 2023, p. 1.)
Mindful of the overriding purposes of the RJA, our good cause inquiry begins by considering whether Wilson seeks to raise a plausible RJA claim. He does. We thus proceed to examine whether Wilson has shown that a stay and remand may be needed to ensure that he is able to litigate those claims in a timely manner, and thus has timely and effective access to the remedies the RJA makes available for proven racial discrimination in the administration of criminal justice. Finally, we consider other circumstances relevant to the existence of good cause.
a. Wilson‘s access to RJA remedies
We turn, then, to the circumstances relating to Wilson‘s access to RJA remedies. At the outset, we observe that this case differs in an important respect from other cases in which courts have employed the stay-and-remand procedure. In those cases, the courts were confronted with a particular jurisdictional
This case poses no similar timing dilemma, for, as we now clarify, there is no legal obstacle preventing Wilson and other defendants in his position from simultaneously pursuing relief through a direct appeal and relief in the superior court through a petition for writ of habeas corpus. The RJA, as we read it, draws on settled principles in the habeas context to afford defendants whose RJA claims are independent of the claims on appeal a timely opportunity to raise extrarecord RJA claims without regard to the status of proceedings on appeal.
We begin with settled principles. Again, as we have noted, the standard vehicle for developing and presenting claims of error in the judgment based on evidence outside the appellate record — as Wilson seeks to do here — is a petition for a writ of habeas corpus. (
This sort of concurrent jurisdiction is, of course, limited in that the trial court “does not have ‘the power to interfere with the appellate jurisdiction of either [this court or the Court of Appeal] in matters pending before said appellate courts.‘” (In re Carpenter, supra, 9 Cal.4th at p. 646.) But a trial court ordinarily does not interfere with appellate court jurisdiction when it entertains a request for relief based on arguments and evidence outside the appellate record. In Carpenter, for example, we concluded there was no such interference when the habeas corpus claim before the superior court involved juror misconduct that did not appear in the record. (Ibid.) We explained that because “[a]ppellate jurisdiction is limited to the four corners of the record on appeal,” we could not consider the misconduct claim “[i]n the exercise of our appellate jurisdiction.” (Ibid.; cf. People v. Mayfield (1993) 5 Cal.4th 220, 225 [trial court lacked jurisdiction to grant a habeas petition on the same issue that had been adversely decided on the record on appeal].) This conclusion was based on a long-standing understanding of the law (e.g., France v. Superior Court (1927) 201 Cal. 122, 132 [superior courts may not exercise their concurrent habeas jurisdiction “on any ground appearing upon the face of the record on appeal“]; In re Baker (1988) 206 Cal.App.3d 493, 500 [“the trial court was free to determine the [ineffective assistance of counsel claim], irrespective of the pendency of the appeal” because neither proceeding would interfere with the other]), and remains in force (see Robinson v. Lewis (2020) 9 Cal.5th 883,
The RJA makes use of this concurrent path to relief by providing that claims under the Act may be initiated by a petition for a writ of habeas corpus. (
Although Wilson acknowledges settled precedent permitting concurrent jurisdiction in the habeas context, he notes that there is “an insurmountable backlog” of capital cases awaiting the appointment of habeas counsel. He argues that without any “realistic prospect for the appointment of habeas counsel,” he would be left with no timely way of raising his RJA claims by way of a concurrent habeas petition. He asserts that a stay and remand, which would allow him to present a postjudgment RJA motion in the trial court before the final resolution of his appellate claims, is necessary to overcome this problem.
But the Legislature contemplated a process for appointment of counsel to raise RJA claims that is distinct from the process for appointing counsel “in proceedings pursuant to Section 1509 of the Penal Code” (
The RJA authorizes defendants to raise RJA claims through the same mechanism contained in
Wilson suggests limited-scope RJA representation is not viable because of the risk of procedural default. He asserts that if he were to file a petition raising only RJA claims under
When the appointment of capital habeas counsel marks petitioners’ first opportunity to raise comprehensive challenges to their convictions or death sentence on bases other than the RJA, such challenges are not barred as successive. (See In re Friend, supra, 11 Cal.5th at p. 724.) This conclusion follows from settled law. A petitioner entitled to the appointment of capital habeas counsel “is entitled to rely on that attorney to conduct a reasonable investigation and, if appropriate, present viable claims in a single petition.” (In re Sanders (1999) 21 Cal.4th 697, 720.) As a consequence, “the actions (or inactions) of appointed counsel are relevant to deciding whether the
Wilson also contends that even if appellants are entitled to file limited-purpose RJA petitions, there is no guarantee that qualified habeas counsel will be available to represent them. We acknowledge the importance of this concern. The same concern is also reflected in the legislative history, which indicates that the stay-and-remand procedure could be “particularly important for individuals with death sentences . . . [who are] unlikely to have habeas attorneys assigned to them due to the unavailability of qualified counsel, making it nearly impossible to litigate their RJA claims in a timely fashion.” (Sen. Com. on
But Wilson has not shown this concern is present in his own case. Wilson is represented by the Office of the State Public Defender (OSPD), which has indicated that it is willing to continue to represent Wilson in developing and presenting extrarecord RJA claims. Although Wilson would prefer this to occur through an RJA motion adjudicated while the final resolution of the appeal is stayed,20 he has not shown that OSPD would be unavailable to litigate his claims if they were to be raised instead through a limited-purpose habeas petition addressed exclusively to RJA claims. As for counsel‘s qualifications, Wilson notes that there are specific requirements for capital habeas representation — set out in
Wilson argues that the mechanism for appointing habeas counsel for RJA petitioners is “at best, unclear” and asserts that allowing capital appellants to pursue RJA claims following an appellate stay and remand will generally be “much faster than waiting for the appointment of capital habeas counsel.” Wilson does not, however, point to difficulties that will arise in his own case; that is, he does not argue that the RJA appointment mechanism is inadequate to ensure prompt appointment of his existing counsel to initiate limited-purpose habeas proceedings. (See
In sum, Wilson has not demonstrated that any legal or practical obstacle will delay or prevent him from raising his extrarecord RJA claims through the usual means of a petition for writ of habeas corpus. He thus has not shown that a stay of the adjudication of his appeal is necessary to afford him timely and effective access to RJA remedies.22
b. Other relevant considerations
To determine whether a stay and remand is warranted, we must also consider the interests on the other side of the balance. The RJA proceedings Wilson seeks to pursue are potentially quite involved, and as such would cause significant delay in the resolution of his appeal. (Cf. People v. Awad, supra, 238 Cal.App.4th at pp. 224–225 [the hearing for Awad‘s uncontested petition was estimated to require 15 minutes, a relevant factor in favor of the stay and remand].) Wilson states that he will present evidence from both lay and expert witnesses in support of his claim of juror misconduct. He also indicates he will seek discovery under
We recognize that Wilson is willing to tolerate — indeed, perhaps may favor — delaying the final resolution of his appeal while he litigates his RJA claims in superior court. But we must also consider the interests of victims’ families, witnesses, and the public as well. (E.g.,
Wilson also invokes judicial economy, noting that success on his RJA claims could moot some or all the issues raised on direct appeal. As a general matter, of course, the reverse is also true, that success on a direct appeal could render RJA proceedings unnecessary. And as just described, RJA proceedings, with an appropriate showing, may require protracted discovery, other difficulties in obtaining and presenting evidence, and an evidentiary hearing potentially broad in scope. Under the circumstances, considerations of
3. Conclusion
Ultimately, Wilson has not demonstrated that he faces legal or practical obstacles to pursuing RJA relief in superior court that would be avoided by staying adjudication and final resolution of the claims he has raised on direct appeal and remanding his case to initiate RJA proceedings. As such, Wilson has not established good cause for us to depart from our usual practice of adjudicating what we can based on the record before us and deferring matters that require substantial factual development for presentation through a petition for a writ of habeas corpus.
The concurrent jurisdiction afforded to habeas corpus petitions raising RJA claims, the opportunity, after the appointment of full-scope capital habeas counsel, to raise non-RJA claims challenging a death judgment without a successive procedural bar, and OSPD‘s ability and willingness to develop and present Wilson‘s RJA extrarecord claims, all mean that this usual practice will not prevent Wilson from seeking prompt relief for violations of the RJA or undermine the Legislature‘s clearly expressed urgency to remedy racial discrimination in the criminal justice system. A stay and limited remand, or a remand without a stay, are not necessary in these circumstances to ensure efficient and effective access to RJA proceedings. We therefore deny Wilson‘s motion for a stay of his appeal and limited remand to pursue extrarecord RJA claims and deny his alternate request of a remand without a stay.
We emphasize that our holding today is limited. In concluding that the RJA does not automatically authorize a stay
The judgment is affirmed. The motion for a stay and limited remand is denied.
KRUGER, J.
We Concur:
GUERRERO, C. J.
CORRIGAN, J.
GROBAN, J.
JENKINS, J.
Javance Mickey Wilson was convicted in 2002 of murder and robbery of Andres Dominguez; murder and attempted robbery of Victor Henderson; and robbery, carjacking, and attempted murder of James R. His second jury sentenced him to death. In 2020, the Legislature enacted the RJA, requiring the remediation of racism in all its forms in our criminal justice system. In March 2023, Wilson filed a motion in this court
The question is whether Wilson has established good cause for a stay and remand under the RJA. I would hold that he has. The Legislature created an express stay-and-remand mechanism for appellate defendants to litigate their RJA claims. (
I.
The California Racial Justice Act & Its Stay-and-Remand Mechanism
In enacting the RJA, the Legislature declared: “We cannot simply accept the stark reality that race pervades our system of justice. Rather, we must acknowledge and seek to remedy that reality and create a fair system of justice that upholds our democratic ideals.” (Stats. 2020, ch. 317, § 2, subd. (b).) The Legislature sought to address the “deleterious effect” racial bias has “on our system of justice as a whole,” that “undermines public confidence in the fairness of the state‘s system of justice and deprives Californians of equal justice under law.” (Id., § 2, subd. (a).) It observed that “[e]ven though racial bias is widely acknowledged as intolerable in our criminal justice system, it nevertheless persists because courts generally only address racial bias in its most extreme and blatant forms.” (Id., § 2, subd. (c).) The Legislature squarely rejected “[e]xisting precedent” that not only “tolerates the use of racially incendiary or racially coded language, images, and racial stereotypes in criminal trials” but also “accepts racial disparities in our criminal justice system as inevitable.” (Id., § 2, subds. (e), (f).) It rejected the legal doctrines that have been used to bar relief, deeming them improperly animated by “‘a fear of too much justice.‘” (Id., § 2, subd. (f), quoting McCleskey v. Kemp (1987) 481 U.S. 279, 339 (dis. opn. of Brennan, J.).) In embarking on a different path, the Legislature announced its “intent . . . to eliminate racial bias from California‘s criminal justice system” and “remedy the harm to the defendant‘s case and to the
The Legislature‘s intent “to actively work to eradicate” racial disparities in the criminal justice system (Stats. 2020, ch. 317, § 2, subd. (i)) was subsequently extended in 2022 to existing judgments (Stats. 2022, ch. 739, § 1), putting those under a judgment of death at the front of the line. (See
Last year, the Legislature added the stay-and-remand provision to section 745(b). Specifically, the RJA was amended to provide a defendant “may . . . move to stay the appeal and request remand to the superior court.” (
The Legislature deemed the stay-and-remand mechanism “particularly important for individuals with death sentences,” since these individuals — like Wilson — are “unlikely to have habeas attorneys assigned to them due to the unavailability of qualified counsel, making it nearly impossible to litigate their RJA claims in a timely fashion.” (Sen. Com. on Pub. Safety, Analysis of Assem. Bill No. 1118 (2023‒2024 Reg. Sess.) as amended May 18, 2023, p. 6.) For capital defendants, access to these remedies is a matter of life or death. (
II.
Wilson Has Demonstrated Good Cause Pursuant to the RJA‘s Stay-and-Remand Procedure
The stay-and-remand procedure in
In contrast, for example, Proposition 47 (the Safe Neighborhoods and Schools Act), which reduced certain
When the Legislature added the stay-and-remand procedure to the RJA, it did not state whether a showing of good cause is required, nor define what constitutes good cause under that provision. The language of
Based on the legislative history related to
III.
Even If Section 1260‘s Cause Standard Applies, Wilson Has Demonstrated Good Cause Under That Standard
The majority writes the RJA‘s stay-and-remand mechanism out of the statute and supplants it with
Even if
The Legislature designed
In evaluating what is “just under the circumstances” (
The prospect that proceedings to vindicate rights under the RJA may be “potentially quite involved” (maj. opn., ante, at p. 111) was known to the Legislature at the time it enacted the stay-and-remand procedure. Yet the Legislature nonetheless believed the stay-and-remand mechanism was “particularly important” for capital defendants like Wilson, given the high stakes and the time these defendants have been waiting to vindicate their rights.
The RJA is different from the statutes at issue in the cases relied upon by the majority. Those cases demonstrate there is a different calibration for good cause in the context of the RJA favoring a stay and remand here. As noted above, the statutes at issue in the cases cited by the majority do not contain express stay-and-remand provisions as the RJA does — much less one included for the explicit purpose of efficiently and effectively resolving claims brought under the statute. In the RJA, the Legislature has included a specific stay-and-remand procedure and prioritized swift resolution of viable claims over possible delay in the finality of appeals. Additionally, unlike the RJA, the statutes at issue in the cases relied upon by the majority did not involve basic civil rights protections. It would be a category error to analogize the stay-and-remand procedure here — which facilitates the RJA‘s anti-discrimination purpose — to the stay-and-remand procedure for recent sentencing reform measures, which were enacted merely as “an act of grace and mercy.” (People v. Vance (2023) 94 Cal.App.5th 706, 716.)
As emphasized by the Legislature, the fact that Wilson is a capital defendant carries particular significance and weight in the good cause assessment. When the Legislature extended the RJA to all defendants, it stated that that these remedies are to be expeditious, efficient, and effective. But as to capital
It is well known, especially to this court, that there is a dearth of qualified counsel and funding for capital appointments. There are yearslong delays in the appointment of counsel for direct appeals and habeas corpus petitions, and those delays are particularly protracted in the appointment of habeas counsel. (Cal. Com. on the Fair Admin. of Justice, Final Report (2008) p. 114 (Commission Report) [“The system is plagued with excessive delay in the appointments of counsel for direct appeals and habeas corpus petitions“].) “On average in California, it takes three to five years after a death judgment to appoint appellate counsel. [Citation.] In April 2016, there were 49 capital defendants waiting for attorneys to be appointed for direct appeals and 360 capital defendants waiting for attorneys to be appointed for habeas corpus petitions. [Citation.] About
Much of the delay in appointing capital counsel has been attributed to a lack of qualified counsel and funding. (Death Penalty Report, supra, at p. 32 [“The main reason for these delays [in capital proceedings] is a lack of qualified attorneys to handle state habeas corpus proceedings“]; HCRC Report, supra, at p. 23 [noting the attribution of the backlog to “the acute shortage of qualified, competent attorneys willing and able to accept appointments in habeas corpus proceedings“].) “The California death penalty costs the state approximately $150 million per year. Even with those costs, the state is not spending
There is no indication that these barriers to accessing qualified capital counsel and funding disappear in the context of a limited-scope habeas appointment for a capital defendant. (See Death Penalty Report, supra, at p. 31 [“The Judicial Council of California recently estimated and sought additional annual funding of more than $18 million to cover Proposition 66 costs. This funding request was not granted“]; id. at p. 32 [“by requiring that Superior Courts process habeas cases in the first instance, Proposition 66 created an additional level of review: either side may appeal the habeas decision of the Superior Court and new counsel must then be appointed in the Court of Appeals“]; HCRC Report, supra, at p. 19 [“the courts have
The majority also fails to explain why a limited-scope RJA capital habeas appointment does not require compliance with California Rules of Court qualifications. (
The majority next fails to address whether superior courts can prioritize appointing capital habeas counsel for RJA proceedings over appointing capital habeas counsel for the oldest judgments of death.
Rather than addressing the Legislature‘s concerns about capital defendants accessing qualified counsel, the majority assumes staying the appellate proceedings is unnecessary by relying on the fact that Wilson is represented by the Office of the State Public Defender (OSPD) on appeal. The majority explains capital defendants can pursue their RJA claims in a habeas proceeding separately from their comprehensive habeas petition (without tripping any future successiveness bars) and posits that Wilson‘s appellate counsel can represent him in that limited-scope RJA only habeas proceeding. I have no reason to doubt that OSPD would meet the qualifications for such an appointment under the California Rules of Court, and OSPD has given no indication otherwise. But there are several readily apparent reasons the majority‘s reliance on OSPD‘s ability to represent Wilson in a limited-purpose RJA is misguided.
In Wilson‘s case, there undoubtedly will be obstacles and attendant delays for OSPD to be appointed in this limited
HCRC reports that, as of 2023, it has only been appointed by the superior court in one case, and other than HCRC, only “four attorneys licensed to practice in California are qualified under the California Rules of Court to represent petitioners in their habeas corpus proceedings.” (HCRC Report, supra, at p. 19, citing
Even if we were to assume these obstacles are surmountable — that enough funding is available and the delays in appointment of RJA-limited habeas counsel are relatively marginal in comparison to the delays in capital proceedings — Wilson‘s appeal will soon be final, at which point OSPD‘s capital appellate appointment will end. With OSPD‘s appellate appointment ending, Wilson will become what is known as a Morgan petitioner (In re Morgan (2010) 50 Cal.4th 932): a capital defendant whose appeal is final and is awaiting
In relying on OSPD to represent Wilson in an RJA-limited habeas proceeding that “is not likely to be practically very limited” (maj. opn., ante, at p. 112), the majority effectively charges OSPD with a Herculean task: to provide representation in RJA habeas proceedings to its current capital appellate clients and its former clients who are awaiting appointment of capital habeas counsel for their comprehensive habeas petition, while simultaneously providing vigorous, timely, and efficient representation in their clients’ capital appeals. It is possible, I suppose, that CAP could assist Morgan petitioners in this RJA habeas appointment vacuum too. But charging OSPD with the aforementioned appointments and attendant professional responsibilities and obligations demands a significant financial investment in staffing and resources for capital appointments and proceedings — an investment that has been repeatedly called for but never made. (See, e.g., HCRC Report, supra, at p. 24 [noting HCRC‘s recent request to fund 70 new positions was denied].)
In addition, the majority fails to appreciate that half of capital appellate appointments are court-appointed private counsel, not OSPD. CAP, who provides support to court-appointed, private capital appellate counsel in roughly 140 of the 220 capital cases with direct appeal appointments, raises
This court is responsible for paying court-appointed private capital counsel for RJA related work under
The majority claims Wilson has not shown “he faces legal or practical obstacles” (maj. opn., ante, at p. 113) in accessing RJA relief pursuant to a habeas petition. But Wilson did present a significant and documented obstacle in his letter following oral argument: that “the appointment of capital counsel to represent a capital client in habeas proceedings has essentially ground to a halt.” It is unclear how Wilson (or others) will overcome this reality or how they could satisfy the majority‘s newly articulated burden of proving what “legal or practical obstacles” they may face. Today‘s opinion places Wilson and future litigants in an absurd predicament — one that the Legislature by its own words did not intend and indeed
The majority‘s approach injects delay, avoids addressing the issue of counsel qualification requirements, and does not utilize earmarked funding allocated to this court and capital counsel for RJA related work. Most troubling, it allows for the affirmance of death sentences even where nonfrivolous claims have been raised about racial bias that, if proven, would require vacating the conviction and sentence and prohibit the prosecution from seeking death. It does not make sense from a judicial economy perspective to affirm an appeal in such instances and is not what the Legislature contemplated when it included an express stay-and-remand provision in the RJA. Instead, the stay-and-remand procedure provides a clear, prompt, and efficient means of evaluating claims of racial bias. Additionally, a stay and remand could effectively take cases out of the overburdened, automatic capital appeal pipeline. In cases like Wilson‘s where such claims can be addressed within the scope of his appeal, it makes sense to do so before an appeal is final where possible.
The majority suggests “further delaying the resolution of Wilson‘s appeal” is against “the interests of victims’ families, witnesses, and the public.” (Maj. opn., ante, at p. 112, citing
What‘s more, the RJA seeks to vindicate the interests of all Californians in having a criminal justice system free of racial bias. (See Stats 2020, ch. 317, § 2, subd. (a) [racism in the system “undermines public confidence in the fairness of the state‘s system of justice and deprives Californians of equal justice under law“].) The stay-and-remand mechanism was designed to accelerate the achievement of that goal, not to accelerate the processing of automatic appeals in cases that plausibly may be tainted by racial bias. As we have previously recognized, Californians value the interest of fairness above expediency (Briggs, supra, 3 Cal.5th at p. 860) and understand “a court‘s fundamental and overriding obligation to administer the proceedings that are pending before it in a manner that is
Lastly, in denying Wilson‘s stay and remand request, the majority states there will be no successiveness bars for capital defendants who bring a limited-scope RJA habeas petition separately from a comprehensive habeas petition. (Maj. opn., ante, at pp. 84, 86, 101–104, 106–108.) I appreciate the majority‘s commitment to ensuring it hasn‘t laid procedural traps for Wilson, as well as its guidance for future RJA capital litigants. Nevertheless, the majority‘s analysis raises more questions than it answers. For instance, if OSPD litigates certain RJA claims for select current and former clients by way of a habeas petition, will subsequent habeas counsel be barred from litigating any additional RJA claims it identifies? Will this court more promptly address future requests for a stay and remand so that capital appellate defendants who are forced to initiate habeas proceedings may do so in a timely fashion? Will the Attorney General appreciate the majority‘s example of “intertwined” RJA claims (see maj. opn., ante, at p. 114, fn. 23) as ones more suitable than Wilson‘s for a stay and remand, or will he argue that remanding “intertwined” claims for further factual development provides defendants an impermissible second bite of the apple? Can a capital defendant ever show good cause for a stay and remand, since the majority views RJA proceedings as “not likely to be practically very limited” and an obstacle to the resolution of a capital defendant‘s appeal? (Maj. opn., ante, at p. 112.) While the majority‘s assurance it has not obliterated the RJA‘s stay-and-remand procedure may have initial appeal, its approach has created an unnecessary procedural maze for Wilson and future litigants.
There is a certain irony in the majority‘s suggestion that judicial economy does not support Wilson‘s request when today‘s opinion, by its own terms, opens a new field of case-by-case jurisprudence on what constitutes “good cause” and what sorts of claims are sufficiently “intertwined” to warrant a stay and remand. (Maj. opn., supra, at p. 114, fn. 23 [“We also have no occasion here to provide an exhaustive catalog of other considerations that may be relevant in subsequent cases. For purposes of future guidance, however, we note that the analysis will likely be different in cases unlike this one, in which the RJA claims are intertwined with issues on appeal“].) None of this forthcoming litigation and totality-of-the-circumstances decisionmaking under
One thing is clear: capital defendants on appeal who hope to have any chance of resolving their RJA claims in an efficient and expeditious manner should file their request for a stay and remand as soon as practically possible in the event they need to join the long line of those awaiting the appointment of habeas counsel. There may be a significant lapse in time between making the request and the court‘s ruling, during which time the queue for appointment of RJA habeas counsel may grow. And since the majority indicates that cause for cases farther along in the appellate pipeline is more difficult to demonstrate given the interests favoring resolution of the appeal (none of which were noted by the Legislature in enacting the stay-and-remand procedure), capital litigants may stand a better chance at having their request granted the sooner they make it.
In sum, OSPD and CAP cannot solve the lack-of-qualified-counsel conundrum of which the Legislature was rightfully
* * *
Today‘s opinion departs from the Legislature‘s demand to efficiently rid the criminal justice system of racism in all its forms. Despite the Legislature‘s clear and urgent call, it effectively deems those who may have racially biased convictions and death sentences as undeserving of swift access to equal justice under the law. The majority achieves an affirmance of Wilson‘s appeal at the cost of injecting needless additional delay into the death penalty system — bringing it even closer to collapse. (See Howe, Can California Save Its Death Sentences? Will Californians Save the Expense? (2012) 33 Cardozo L.Rev. 1451, 1452 [noting former Chief Justice Ronald George‘s warning that the death penalty system is at risk of ” ‘fall[ing] of its own weight’ “]; Shafer, California‘s Chief Justice: Hard to Say the Death Penalty Is Working (Jan. 23, 2015) KQED [quoting former Chief Justice Tani Cantil-Sakauye‘s statement, “It‘s difficult to say it‘s working . . . . And there‘s no talk in the state Legislature of fixing it“].)
Now, the Legislature is left to act once again to address the injustices and inefficiencies it aimed to resolve in enacting
I respectfully dissent.
EVANS, J.
I Concur:
LIU, J.
Name of Opinion People v. Wilson
Procedural Posture (see XX below)
Original Appeal XX
Original Proceeding
Review Granted (published)
Review Granted (unpublished)
Rehearing Granted
Opinion No. S118775
Date Filed: August 5, 2024
Court: Superior
County: San Bernardino
Judge: James A. Edwards
Counsel:
Michael J. Hersek, Mary K. McComb and Galit Lipa, State Public Defenders, Jessica K. McGuire, Assistant State Public Defender, Christina Spaulding, Chief Deputy State Public Defender, Ellen J. Eggers and Craig Buckser, Deputy State Public Defenders, for Defendant and Appellant.
Kamala D. Harris, Xavier Becerra and Rob Bonta, Attorneys General, Gerald A. Engler and Lance E. Winters, Chief Assistant Attorneys General, Julie L. Garland and James W. Bilderback II, Assistant Attorneys General, Holly D. Wilkens, Meredith S. White and Donald W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.
Craig Buckser
Deputy State Public Defender
770 L. Street, Suite 1000
Sacramento, CA 95814
(916) 322-2676
Christina Spaulding
Chief Deputy State Public Defender
1111 Broadway, 10th Floor
Oakland, CA 94607
(510) 267-3300
Donald W. Ostertag
Deputy Attorney General
600 West Broadway, Suite 1800
San Diego, CA 92101
(619) 738-9557
Notes
As Wilson acknowledges, OSPD has been appointed for both appellate and habeas proceedings in the past and currently represents capital habeas clients.
The California Appellate Project, as amicus curiae in support of the OSPD, raises concerns about the effect of qualification requirements on the appointment of limited-scope, RJA habeas counsel for capital appellants who are not represented by OSPD. This issue is beyond the scope of our decision today. The parties have not addressed the question and, as explained above, it is not directly at issue in this case. Under the circumstances, the better course is to address the matter after the parties have had an opportunity to consider, brief, and argue the relevant issues in a case that presents them and requires their resolution. (See In re D.P. (2023) 14 Cal.5th 266, 276 [reiterating the obligation to avoid ruling on “‘“abstract propositions“‘“].) For present purposes, it suffices to observe that it is not clear that the same qualification and appointment requirements apply to RJA habeas counsel as have been implemented for comprehensive capital habeas representation governed by
The dissent raises a number of possible practical concerns that may arise in other cases. Among other things, the dissent questions the funding available for RJA habeas counsel and suggests that it may be more difficult for the superior courts to resolve RJA claims raised in a limited-purpose habeas petition than to resolve them in a filing denominated a “motion.” The dissent also envisions an untenable burden on OSPD if it assumes an obligation to represent all of its current and former clients in limited-purpose RJA habeas proceedings. (Dis. opn. of Evans, J., post, at pp. 13, 17–18.)
Our holding today does not preclude litigants from raising such concerns in future cases. As the dissent notes, our consideration of Wilson‘s stay-and-remand request “necessarily depends on the specific circumstances of the case and context.” (Dis. opn. of Evans, J., post, at p. 8.) In this particular case, Wilson has not pointed to any concrete obstacles to his own development and presentation of RJA claims in a habeas proceeding. We presume that Wilson and his counsel are best positioned to identify matters of concern regarding Wilson‘s own case.