*1 2, No. 21436 Jan. [Crim. 1987.] PEOPLE,
THE Plaintiff v. Respondent, LEDESMA,
FERMIN RODRIGUEZ Defendant and Appellant. 23178. No. Jan.
[Crim. 1987.]
In re FERMIN RODRIGUEZ LEDESMA on Habeas Corpus.
Counsel Court, for Defendant Bryan, R. the Supreme Robert under appointment and Petitioner. Appellant O’Brien, General, P. Edward Assistant Attorney John K. Van de Kamp, Gillette, General, Attorneys Deputy Dane R. Attorney Ann K. Jensen and General, Respondent. for Plaintiff and
Opinion Code, murder MOSK, degree (Pen. convicted of first Defendant was J. (id., robbery (id., § 211); two counts of § 207), and 187), kidnapping § (for of a killing of the intentional witness allegations circumstance special 190.2, Code, robbery (id., subd. felony-murder (c)(2)), mer Pen. subd. § were found (id., (c)(3)(ii)) subd. felony-murder kidnapping (c)(3)(i)), Defendant 190 et (id., seq.). death true; and defendant was sentenced § Code, 1239, corpus for habeas also petitions subd. (Pen. (b)), appeals § the effective right he was denied his constitutional ground on the consolidated have been of counsel at trial. The proceedings assistance decision. claim, we appointed ineffectiveness resolving
To assist this court Santa Clara Court of Kelly, the Honorable P. Joseph Judge Superior Retired, of fact and County, findings to take evidence and make referee the referee hearing, conclusions of law that claim. regarding Following incompe- trial counsel was filed He concluded that defendant’s report. the defense to subjected tent several as a result he particulars, *6 and with effective prejudice, hence that he failed to provide and be granted assistance. he recommended that the Accordingly, petition the writ issue.
As we shall we the and explain, adopt report part referee’s relevant recommendation, follow the referee’s and hence and grant the petition vacate the conviction. judgment
I. Facts 26, 1978, Gabriel as working Flores was an attendant the August On station Company gasoline Oil at 437 West San Carlos Street San Hudson 5:15 two men p.m. motorcycle; About rode into the station on a the Jose. off, some gun, money drew white-handled robbed Flores of and got driver items, and then mounted motorcycle Flores the sped gave other and off.
111 police the license plate motorcycle number and a description robbers. Webster,
Not Jose long afterwards San Police Officer Ronald who was area, patrol general robbery summary in the and a received a report of the information check and Flores He provided. requested registration was motorcycle informed to defendant at suspect registered 985 South First Street in San Jose. He address to that and proceeded soon joined two other officers. parked sight up The three out of and set in the motorcyclist stake-out that the would half hope return. After about an they approached hour front door and encountered occupant, they and stated that Mejia, looking Leticia were for defendant. de- Mejia, girlfriend, told fendant’s former them that he used to live there had but earlier, moved several months that she thought he was then in the living Streets, and area of Third and he Hedding drove a Cadillac white when riding motorcycle. was not Officer Webster proceeded Streets, the area of Third and Hedding went up and Cadillac, down streets looking for a eventually white and found one in the parked driveway a duplex at 960 North Fourth Street. Parking about a away, block Webster requested a in- registration check and was formed vehicle was registered to defendant at North Fourth Street. He returned to the duplex and staked it out for between and minutes. He then called for Officers Habina and Maria Guerra to him help approach the duplex. He and Habina went the front door and Guerra went back. around
At the Millie they door encountered Lawrence and Santiago Dominguez, and they told them were for looking motorcycle defendant and his in con- nection a robbery that had been committed earlier that afternoon.
Santiago and Dominguez stated that defendant was not home at the time. officers, uniform, Without a warrant three who were armed and then apartment, Santiago entered the ordered to remain in the Dominguez move, room and conducted search de- living unsuccessful they were questioning Santiago Dominguez fendant. As after complet- search, the telephone rang. The officers ing prohibited Santiago receiver, from Officer answering. picked Guerra Dominguez up iden- “Millie,” Spanish tified herself in and was told the caller—who said *7 him, he was defendant—that was “hot” and knew the were after police and she should lock that the apartment and the Cadillac and take a walk. white later, 29, 1978, Three days on Jose Sergeant San Police Robert August Traskowski, robbery who was in charge investigation, presented
178 included and was defendant’s was photographs; Flores a six display minute, Flores 4. for a studying marked Number After the photographs said, When asked guy.” “No. 4 looks like the Number and pointed robber, looked at the he Number the he whether was sure that only 4 is one that “No. responded, about seconds and photograph in day, like him.” “Is the man photograph looks When asked later #4 answered, money?,” “Yes.” the same one had the and took the who gun and robbery complaint against Traskowski then obtained identification, eyewitness no warrant for his Flores’s Beyond issued arrest. crime. or evidence linked defendant to the physical 5, 1978, at arrived At 8:15 on the San Jose p.m. September police in Street Hudson Oil 437 West San Carlos Company gasoline station at was unattended. response to calls from customers that the station stating business; office for on the They found to be appeared open station bottle of ashtray half-empty sat a in an and a cigarette counter smoldering Coca-Cola; rolls money missing, cold were although tapestry some that the coins remained on the counter in view. The determined plain police to and duty bicycle Flores. The he used ride person night was from work remained the station. 8, 1978,
On embankment September body Flores’s discovered off Hecker of southern Santa heavily Pass Road wooded mountains top near County Gilroy. body Clara bore one wound gunshot head, back, abdomen, in the and several stab wounds one and two eyewitness to what- physical in the chest. No evidence linked defendant 5 or to the murder. ever occurred at the station on gasoline September to Salt fall of 1978 defendant went early Sometime in the late summer or of March Soon after- until the middle 1979. City, Lake where he remained arrested. San Jose and was he returned to wards II. and Trial Pretrial 26, 1978, and on August Flores charged robbing Defendant was him; 5, 1978, as murdering and with September kidnapping witness, count, of a killing circumstances of intentional special murder At alleged. felony-murder robbery, felony-murder were kidnapping Public Defender defendant was hearing represented Deputy preliminary answer, He Johnson. was held to and entered a plea guilty David afterwards re- special-circumstance allegations. long denied Not Parrish, Jr., Jefferson M. him counsel and substituted tained defender. public
aWith single exception, Parrish made The excep- no motions before trial. tion was a successful request under 1017 for the Evidence Code section M.D., Glathe, appointment of P. psychiatrist, John to examine defendant. office, been had drafted but altered request public defender’s was
to bear Parrish’s name and address of the defender. Prior to place public trial the following took and Parrish. colloquy place between the court case, it, ... I it’s a
“The connection with the as understand Court: Parrish, single of not guilty. you’ve And Mr. had of plea opportunity case, psychiatric evaluation your assistance and of as I under- preparation it? stand Yes, Honor, your
“Mr. Parrish: I have. “The Court: There is no insanity the case? plea “Mr. Parrish: No. feel I that’s not in this plea case. matter,
“The Court: And in connection with the don’t wish to delve I your into in any way defense you or ask divulge anything would your adverse to cases, client. But in view the recent I to make sure want that you have considered in a case of possibility of diminished capacity this nature. Yes,
“Mr. Parrish: your Honor. I review- have considered both [after ing] the psychiatric examination and defense of the strategy also case and decided not to use that as a defense.” trial, reveals,
Prior as the habeas record corpus prosecutor, George Kennedy, committed himself in Parrish’s not to presence introduce the extrajudicial victim’s identification defendant. selection
Jury spanned days. five court Without objection on the part Parrish, the voir dire was conducted in court without open sequestra- tion. day
On third jury effectively selection the court raised sua sponte the issue whether using prosecutor peremptory challenges to Hispanics strike bias contravention ground group alone rule declared in Cal. (1978) v. Wheeler Cal.3d 258 People Rptr.
prospective [fl] in the attention, holding be aware of it. you may already gentlemen, jury right ruled a defendant’s District Court of Appeal Second [a violated when community a fair cross-section drawn is] from] [the all Spanish speaking to remove challenges used peremptory prosecution case, from excerpt I have the don’t jury. apparently, from the In that people Post-Record, informed jurors that were but there were prospective could be only interpreter speak Spanish all the witnesses would case, the prose- in that English. into And testimony sworn translate inclined members would speaking Spanish cutor had some concern [that] in Spanish. testimony given English into to use their own translation Lavario, case, Court of would Appeal In that v. People [subscribe] by the any has been pattern I that there theory. don’t perceive [Here] by way of deliberate persons excusing speaking prosecution Spanish who under- Spanish speaking people discrimination. There’s still several attention, your to call this simply stand on the Spanish jury. [It] gentlemen. recall, everybody case where I wasn’t there a
“Mr. Parrish: Judge, voir dired was was—who was called was not impaneled, who [removed background? had Everybody Spanish who peremptory challenge]? Well, is— from reading “The Court: that I’m excerpts two, I assume? just “Mr. Parrish: It’s not the case of one excluding That jury. remove all from the Spanish speaking people “The Court: To all other— means apparently
“Mr. Parrish: Your Honor— Kennedy: no certainly It’s problem I’m familiar with that case.
“Mr. excusing Spanish of mind on My in this case. state to that respect with that, Mrs. Jiminez knew for example, I excuse was jurors did speaking I think create a thought problem. I that might school. high from I dirty looks. me juror might gave I have excused Spanish speaking another as that I reasons such care for me And had they personally. didn’t felt that members I did. My feeling Spanish speaking those that is that excusing to do with nothing make has community jurors excellent of our [it] excuse those race, I did anything like that. On the occasion when language, mind any state of Mr. Parrish into wants to delve further jurors, [if] that, respect my I’d be reasons for him on the happy explain *10 record. Very I notice that there are the with the good. problems “The Court:
jurors you that there was had excused. Mrs. Maes who is Spanish speaking, a death school high case involved. Mrs. Jiminez had attended the same And him, event, any as the I wanted it on the defendant and recognized [fl] attention, your gentlemen. you.” record and called Thank Shortly challenged after the hearing prosecutor peremptorily prospec- struck, others, juror tive Alan F. Porcella later among prospective Flores, Corral, jurors Jose Carrie A. Bagnod. C. and Robert Porcella spoke may have been Flores and Corral Spanish Hispanic; spoke Spanish evidently were Hispanic; Bagnod Hispanic and understood At Spanish.
no time while the prosecutor exercising peremptory challenges any these or against jurors other did Parrish prospective any objection make attempt to raise the Wheeler issue. also prosecutor challenged prospective jurors solely for cause on of their ground opposition to the death penalty. Without challenge Parrish a juror prospective beaten, whose mother had been sexually assault- ed, and murdered was sworn as a member of the At jury. no time during jury selection did Parrish raise objection any kind.
In his opening statement the in- prosecutor in brief presented what tended prove chief, in his case in and stated objection part without on the of Parrish that the victim had identified the robber. Parrish made no opening statement.
In the course presenting his case the Tras- prosecutor Sergeant called kowski. Traskowski generally described his investiga- participation tion of the robbery. August Evidently because his commitment not defendant, extrajudicial introduce the victim’s identification the prose- elicit, cutor testimony did not and Traskowski did not give, express this point: Kennedy) you have
“Q. Showing People’s you Mr. ever seen this (By Yes, I have. before? A. you seen And where that before? A. This is a I
“Q. photo lineup with reference Mr. Ledesma. prepared
“Q. right. you All And is that the prepared one that connection with investigation at the Hudson Gas robbery place that took Station on the 26th of A. Yes. August, 1978? Now, you lineup
“Q. day, compared after following [rac] it, Mr. to a you lineup out and show that go Mr. Ledesma’s did picture Yes, I Gabriel Flores? A. did. on the 29th of in the you morning And out there about 9:30
“Q. go did him A. Yes. lineup? order to show August anyone if he able to select Was Mr. Flores told be careful were “Q. anyone if A. Yes. not to out he wasn’t sure? pick *11 him “Q. Okay. necessary by any Was he admonished means for it was anyone lineup? out those there pick among people photographed Yes, he A. was. if
“Q. pick Was he also asked that he was not to out understood Yes, robber, forth? A. he was. anyone unless felt that was the so person Now, that, over and “Q. Okay. following day, you go on the same did Yes, A. robbery Mr. I did. complaint against obtain a Ledesma? in connection with that sought And an arrest warrant also “Q. was A. Yes.” robbery complaint? crucial impor- testimony given, was elicited no express
Although to the other robbery implicitly count—and to the tance of the identification between colloquy following in the made clear counts as well—was Traskowski. and prosecutor Sergeant robbery case that Now, a one-witness By Kennedy )
“Q. Mr. ( Yes, it was. A. time? you were at that investigating to the witness the one that, victim it mean that the “Q. And does of. were aware that we anything that saw only case? A. Yes. He’s the one case, what robbery that, a one-victim “Q. you When have a case such way? other in some missing or is dies to the happens case when the witness to prosecute.” A. case You can—it impossible can be an the investi- participation Officers their Webster Guerra described entry warrantless into gation consequent August robbery Be- call. telephone into defendant’s apartment interception telephone, fore she related over the made allegedly statement defendant any raised Guerra added neither that the officers in.” Parrish were “invited objection testimony to Guerra’s nor attempted to undermine it on cross- examination. Sylvia prosecution testify called one Ontiveros to certain admis-
sions defendant had made. on the allegedly questioned When matter examination, however, direct although Ontiveros stated that she had heard several she identify—say whom could defendant had been people—none involved in crimes she never charged, had heard defendant himself any make or at could not whether clearly admission least remember he had. husband,
She that on informed that her Santia- being police admitted Ontiveros, go in the crimes she had stated that (“Jimmy”) suspect She defendant made admissions involvement. further admitted that she Nevertheless, had so testified at the she preliminary hearing. continued clearly had insist that she could not remember whether defendant made of direct she beginning admission. At examination stated she was testify, testimony afraid to end she she had gave declared given myself.” in an to hurt effort “not
The next one prosecution Shay. Shay called Michael that met testified he defendant, “Jose,” who introduced himself as at a at the Cobble party in Salt Lake Square Apartments City days in March Two he 1979. later again saw defendant at the same him or complex spoke with for ten conversation, said, fifteen minutes. their During he defendant made the admissions: following he was from San Jose and for robbery was wanted a station; at a at gas the time of the he robbery had in put gun a the atten- “narced”—i.e., dant’s face and said if he informed—on him he would come “snuff”—i.e., back and kill—him; he went back to the station and as the attendant was a of oil in placing case his trunk pushed it; him and he shut then took the attendant to the mountains and gun him; unloaded a into he killed the attendant he because had “narced” on him. After the conversa- tion, said, Shay he left and never saw defendant again.
The then prosecution Floyd called one Cowdell. Cowdell testified he defendant, Salinas,” met who identified himself “Joe as around September later, 1978. or three Two weeks defendant moved in him and his wife stayed Sharia and two or three months. While he was there he made the he following City admissions: moved Salt Lake because he was trouble warrant; in California and was under a murder he being sought and a friend station; had a a robbery gasoline riding committed at he was a motorcycle; he mask and him; had wear a the victim saw because he did not forgotten others, caught, want to he returned with two or three took the victim in get mountains, a some bushy black van to some and shot and place stabbed him. Cowdell, testimony differed
The next called Sharia whose prosecution defendant, met who some from her husband’s. She stated that she respects Salinas,” himself “Joe after- August long identified as around 1978. Not there, in, he his time stayed During wards moved three months. about Floyd: he a friend com- made the admissions to her and he and following motorcycle robbery station; at in on a gasoline mitted he had ridden friend mask; had he and his forgotten pull robbery down his after the looking went to another friend’s house and were told the were police station, them; he and some of his friends back to the and took went times, mountains; his to the he shot him a told partner attendant there few him, refused, in the to stab and when stabbed attendant partner testified, tale, he his them When defendant finished Sharia he told chest. if they kill informed on him. would them depict- several which photographs graphically introduced prosecutor bore, taken at the body having and the wounds it some been
ed the victim’s object Parrish did not to the admis- autopsy. scene and the rest crime no and in fact twice stated that had sion of photographs, objection autopsy photographs. to the introduction defense, in his own substance gave the stand Taking 1978, around a.m. and testimony. got On following August up motorcycle. He stayed the ride home on night friend who had gave a two at the friend’s home and then went visit talking some time spent He arrived at their only “George” he knew “Joel.” friends whom *13 found a man and 3 3:30 and them with p.m. present about or apartment know; they marijuana. he did not drank and smoked woman whose names street, returned; beer, and 4:30 he across some bought About went p.m. and they marijuana. George to run continued drink but started low car their Joel Since get “joints” phencyclidine (PCP). decided to some he motorcycle; his they money, was out of and no them use gas had let they keys driving; gave George, George and watched them leave with be some they said would back about an hour. He then to drink started beer. more continued, re- p.m., 5:30 and 5:45 defendant and Joel George
Between $20 PCP “joints” they some which had for purchased apiece. turned with smoked, laughed George and talked. told them drank and then group robbery an armed at the Hudson just pulled gasoline he and Joel had they some bills. and Joel said substance that George and flashed station motorcycle’s had license plate and not covered the job quickly had done his defendant called former p.m. themselves. About or disguised motorcycle his car and were Mejia, Leticia at whose address girlfriend, him; told for she anyone looking and asked whether had been registered, him just had been there to find him and said he police attempting Joel, robbery. very had armed He became and pulled angry George been in They who knew had and had committed robberies before. prison worry stay told him not to and that he at the “until the suggested apartment heat’s off.” He decided to act on their him suggestion—Mejia told having had his address. He did not call his given police she apartment thought Officer Guerra had testified. He about himself in turning telling Joel, but decided George about not to because he feared he police be labeled a “snitch.” would weeks, on, or three
He remained at the two defendant went apartment Finally, never it out of fear he be arrested. he took a bus to leaving might City. Salt Lake There he met a cousin. He told her he was was wanted stayed had committed the crime. He robbery for armed but with her Cowdells, then between one and two months and moved with whom day Floyd he had met another cousin. One told him he had through just robbery, indeed about all the robberies bragged he had been pulled said, cool, defendant committing. response “Why you don’t man. me, know, bring any they’re you
Don’t more heat because for looking wanted, robbery.” armed he told them he Although was he did not describe They the incident. no concern expressed that he was being sought: always were police coming to the Cowdell’s home to serve warrants on Floyd. Utah, continued,
While in he called his brothers and Jimmy Ontiveros and learned that gasoline station attendant had been mur- dered and that he was wanted connection with the crime. He never Cowdells, discussed the murder with the they and assumed must have learned about it from the in the police course of some deal. Nor did striking Shay he tell that he had committed a robbery Shay “just or a murder: clown,” another pusher—another him; couple not like defendant did Utah, days before he He did not Shay drug charges. left was arrested on Sylvia discuss Jimmy. the crimes he called Sylvia Ontiveros when testified to memory. “burned out” After she on PCP and had a poor of his friends she told some alleged hearing, admissions at the preliminary *14 being from charges she and murder robbery was forced to do to prevent so brought against Jimmy. he had denied that ever a He also owning gun. ever
Defendant denied Indeed, he asserted that he had a murder. robbery or committed an armed once, committed when he was to the only law been in trouble with of the theft of an automobile. It as a result Authority California Youth felony conviction. suffered a had never that he undisputed from testimony elicited defendant prosecutor On cross-examination revealed that the victim had identified him reports the effect that the police he anonymous as the and that several callers had told police robber The robbery prosecutor and the murder. August had committed his and extensively juvenile defendant about his record also questioned on trial. he was in crimes other than those which participation unproven Further, surreptitiously tape- a he examined defendant conversation on him and in informed he stated he knew who jail, recorded which his from elicited his also get revenge. prosecutor would under the him—to the effect that testimony against explanation Depart- Kahn the Santa Clara Sheriff’s direction of Kenneth Sergeant ment, and the authorities investigation, who of the murder charge Ontiveros, a “frame Sylvia engineer and the Shay, conspired Cowdells matters, others, no substantial On as on Parrish made up.” each these objection. brothers, Ledesma, testified on behalf
Rudy one of older also defendant’s stated, aha, real He were indeed the defense. inter and Joel George to them. persons, and that was had it he who introduced defendant Kahn de- Sergeant On rebuttal the three witnesses. prosecutor called scribed the conduct of the existence of investigation murder and denied the cross-examination, he “frame the course of stated that up.” Parrish did himself not believe Kahn had defendant. participated “framing” Jay County Labrum of the testified Department Salt Lake Sheriff’s Deputy as follows: as he was known as “Jose Salmas” and before seeking person crimes, learned of the had California he went to Cobble Square persons and showed defendant’s includ- Apartments photograph several subject said that had admitted a rob- ing Shay; Shay California armed murder; Shay he did not information to did bar- bery supply him. John Bernardo the same gain Sergeant department gave testimony: person as was as “Jose Salmas” following seeking known crimes, before he had learned of the California he interviewed the Cowdells; Sharia told him defendant admitted a man in California killing no Floyd said same he had made threats or thing; promises had anything up” the Cowdells’ statements and denied he obtain “cook[ed] with the California police. and, case without up summed his argument prosecutor
In closing Parrish, of the victim’s objection by emphasized importance the critical Guerra, defendant, by Officer intercepted call telephone identification of maintained Parrish admissions. In his argument and defendant’s alleged burden, it made clear carry again had failed to but prosecutor that the “I theory: don’t he himself did not believe defendant’s “frame-up” Ias man, of a cheap, some sort my think that the framed that there’s police state- through say, gather maneuver on their evidence part theatrical *15 or threats through of are either somehow persuaded ments who people they way persuaded.” or or whatever are threats to commit perjury peijury Of the the instructions at the all given guilt phase requested were They on the prosecutor. (1979 included CALJIC No. 2.52 after rev.), flight 8.21, crime; degree commission of a CALJIC on modification of No. first felony-murder robbery; (1977 and a of CALJIC No. 8.84.2 modification rev.), special on the of in of a kidnap- circumstance murder the commission ping. any To of the nor given objection, none instructions did Parrish make instructions did he request himself.
During jury their deliberations the several for the reread- made requests testimony. of The such was for of ing Sergeant first the request portion i.e., I.D., testimony I.D. Ledesma.” Because positive Traskowski’s “re: testimony, Traskowski had never such the court to the given responded as follows: “In connection with Officer Traskowski and the iden- request tification shown. not does show that photographs transcript situation, direct That a hearsay was asked a the district question. being in attorney you.” the manner that the will read to After proceeded reporter days, almost 15 hours over 3 re- spent jury deliberations court V2 turned a all finding guilty charged verdict that defendant and that the special allegations circumstance were true.
At beginning of the penalty phase prosecutor and Parrish stipulat- on the “during ed record that the course of these shall jury proceedings consider all evidence which has been during received first part the trial.” Without any objection by Parrish the then preinstructed court jury, 8.84.1, pursuant former CALJIC No. factors sentencing defined in former Penal Code section 190.3. nor prosecutor Neither Parrish presented an opening statement.
The prosecutor called a number of witnesses to establish had committed three armed robberies He early in Salt Lake City 1979.
also called Sergeant Lawrence Demkowski the San Jose Police Depart- ment, who testified that years when defendant was sixteen old he was classified runaway as a juvenile and home burglarized had of one of brothers, stole handgun, robbery attempted armed two other youths, and afterwards stole a car. witnesses,
Parrish called four testimony. each of Ser gave whom brief geant Kahn stated in substance that prior trial defendant made an effort to help the police their search for they the other who believed persons Ledesma, wife, participated the murder.1 Annalita defendant’s former 1On prosecutor cross-examination testimony elicited from Kahn to the when effect that he told defendant the Utah authorities had charges robbery, filed three formal of armed de responded, “Only fendant twenty- three?” and responsible volunteered that he had been eight asked, such On crimes. redirect examination figure, Parrish to the “And as I’m sure, you twenty-eight thirty-six, indicated figures top your are those off the Or head? you actually do recall many he “Twenty- how responded, indicated he had done?” Kahn eight figure is the I recall.” *16 the time defendant worked and was during they together
testified that lived husband, three a father to their good always good and that had been violence, been never shown and to her had never daughters, knowledge had Ledesma, criminal activity. one of defendant’s involved in serious Pasqual brothers, always gotten testified that to his defendant had knowledge older robbery, an armed money from honest work and had never committed objection he had never seen him violent or Without and that armed. success, Parrish, some on cross-examination the prosecutor attempted, from to the effect that was declared testimony Pasqual to elicit defendant Au had been committed to the California Youth juvenile, uncontrollable occasions, cars, had jail stolen had been on various and thority, put had Gomez, all defendant’s best in and out of trouble his life. Reuben been friend, had as although problems was aware that defendant testified him or violence he never knew to be involved in armed robberies juvenile, arrested, kind, carry be or to any weapon. statutory sen- maintained that the closing argument prosecutor
In factors, case, imposition to the facts of this tencing applied required three and one- a brief which fills less than penalty. argument the death not so much a essentially Parrish made pages transcript, half what as a and asked general for defendant attack on plea capital punishment life jury impose without imprisonment possibility parole. With two all the instructions were exceptions, given phase at the penalty by the and 8.84.1. The requested prosecution, included former CALJIC No. modified, were CALJIC No. 2.60 exceptions (1979 as to the effect rev.) may no adverse inference testify, drawn from defendant’s failure modified, 2.61 (1979 CALJIC No. rev.) may to the effect that defendant instructions, on rely the state evidence. In asking for these Parrish submitted form which he requests had obtained from the office. prosecutor’s objection He made no of the instructions requested given, objection indeed made no at all during entire penalty phase. jury may deliberations come close to deadlock: on During court, “What day they second asked are the under circum- options however, jury being day, unanimous?” On the third stances of deliberation, of death. they hours returned a verdict after almost Vi court automatic verdict-modification Parrish filed hearing open At the only written motion only the first and that he had himself prepared ap- for the motion made behalf of since request written Glathe, original of Dr. which had been drafted defendant’s pointment motion, . . . defender counsel. The trial which a “new public sought [or] *17 conclusory judicial modification of rested on assertions of punishment,” error, misconduct, verdicts jury’s and lack of for the prosecutorial support and findings. collo- evidently following
The verdict-modification issue was close. The took between the court and the quy place prosecutor: Kennedy, you, let me ask is there in this case “The Court: Mr. what the defendant to of these crimes other than his own that connects Kennedy: Well, [by] statements that were testified to other Mr. persons? main of course. . . . things,
the statements are the Well, true, it, only it’s isn’t that the evidence that physical “The Court: motorcycle was the license number of the you belong- were able to present Kennedy: . . . Mr. Yes. ing to the defendant? found, found, no “The Court: No was ever knife was ever no gun Kennedy: That’s correct.” Mr.
tapestry. After this the court made a colloquy statement which runs relevant as follows: part nature,
“What has me bothered about this case and throughout was the and the quality, quantity the evidence relative to the defendant’s in the crimes There charged. is no participation question about the evidence missing. There can be no doubt that there was a murder committed. The agency criminal was involved.
“I do believe that the main difiiculty with the case is the question what is to be to the weight given defendant’s if statements believed to other law, Which me to the persons. brings automatic review required that the court conduct in a case in jury which the has returned a death I start that review from the . . . penalty. point view should be judges willing uphold jury’s verdicts all instances where is possible. circumstance, But in this the weight placed upon the court is not as narrow the present as it is under law. say,
“That is to under the 1977 law in which the court is bound to decide automatic It seems to me the court is required reweigh review. entitled to of the evidence in of the conviction reweigh weight support and the penalty.
“But my the whole issue in mind comes down to the question what weight reviewing the case the court is to give testimony to the of those who testify as to statements made the defendant to them. I a case believe committed, of this nature as to the crimes here the death penalty proper penalty. *18 verdict,
“And from the beginning jury when the had their I reached was aware of the fact that I ultimately was going to have to decide the same they
issues that decided and have the of an responsibility independent determination in that regard. The law is that oral statements of the defend- ant are to be viewed with caution. And that doesn’t make any distinction as they’re to who made to or when they’re made or even the circumstances they’re case, believe, under which made. So it becomes in critical I as to testified, those witnesses who as to what the defendant told them. allegedly “Mrs. Ontiveros in who testified left me with part the that her impression all, testimony—well, first of my what she said in mind was not sufficient to any either a verdict in uphold regard, but hers was not only testimony. the But I the got distinct from impression testimony her that she was attempt- ing to hold back. That she not being totally was frank the with court or the I jury. And further would hesitate to give weight testimony to her would the death impose anyone. penalty
“The man from young Utah was a different situation. He had no connec- tion whatsoever with the defendant before the in question. offense here And indeed, it rather a casual connection in with the defendant there Utah. And for a rather brief period time. defendant,
“And the in his testimony, struck me as the type person who would brag, of a type person things who would discuss that he had done a sense of somebody to be else’s attempting enlarged image [an] statements, view. And in that brief only encounter and if that were evidence I’d be hesitant to verdict as far as the death uphold jury’s is penalty concerned.
“But that’s not the only statements. of the people There is the statement who the defendant lived with in Utah . . . for a of time. period think,
“But the I testimony, Cowdells’ damaging part is the most is, attorney’s district case to the Mr. frankly, defendant. That if it was quite alone, testimony, Cowdell’s I jury’s would be hesitant to uphold verdict as far as the death penalty is concerned. testimony
“But Mrs. Cowdell’s her watching was direct and concise. And stand, demeanor, on the witness her and even she said with viewing what caution, crime left me the belief that the defendant had confessed to her. . . . evidence which
“And I’m is although physical aware there no other crimes, concern from connects the defendant to the and that has been a mind, committed the beginning of this case in I believe the defendant my do . . . finding. I crimes as do believe the evidence charged. supports circumstances, “In I think reviewing aggravating and mitigating use I drugs marijuana by circumstance. mitigating think fact convicted of that he had no—that had never been indeed felony, question his criminal record to the events here prior mind, my rather far outweigh, minimal. The aggravating circumstances those mitigating circumstances.”
Accordingly, modify jury’s findings the court to the verdicts and declined and denied and sen- Parrish’s it pronounced judgment motion. Thereupon, tenced to death. Corpus Proceeding
III. The Habeas Claiming that Parrish failed to him with the effective assistance provide counsel—i.e., of that he failed to perform compe- his duties with reasonable tence and as a prejudiced result the filed in this court a defense—defendant petition for a writ of habeas corpus. of his support claim he made numerous most of specific allegations,
which fall into one or more of the Parrish following general categories: (1) failed to adequately the investigate applica- facts of the or case research law, ble especially regard availability to the of defense of dimin- ished capacity; (2) Parrish failed to make and leads use evidence in contained a report by assembled defendant’s defender original public counsel, which Marynella included a psychosocial one report prepared Woods and a general Kuebel; investigative (3) one Russ report prepared Parrish made misrepresentations to defendant to the effect that he could guarantee acquittal evidence; of basis insufficient Parrish failed to (4) to bar attempt reference extrajudicial to victim’s identification de- fendant; (5) Parrish failed to to bar reference call attempt to telephone by Officer intercepted Guerra; (6) Parrish failed to to bar reference attempt to the anonymous telephone calls that defendant was informing police the perpetrator of the crimes Parrish to undertake an charged; (7) failed Ontiveros, investigation Cowdells, of Sylvia Shay, and the and specifically failed to make any effort to determine whether he obtained through had all discovery the material which relating Shay to he was entitled to and the
192 com Cowdells; any effort test the testimonial Parrish failed to make to (8) at Cowdell; (9) Parrish failed to Sylvia Ontiveros and petence Sharia his alleged partici juvenile to bar reference to defendant’s record tempt object prose crimes; in Parrish failed to pation (10) certain unproved from the Hispanics strike challenges use of alleged peremptory cutor’s Wheeler, v. People in jury on bias alone violation ground group jurors 258, two object the excusal for cause of supra, Cal. 3d failed to (1968) v. Illinois U.S. in violation of allegedly Witherspoon compe 88 S. failed to with reasonable 1770], perform L.Ed.2d Ct. selection; failed to in Parrish regards jury (11) tence certain other during Parrish (12) at the present capacity guilt phase; defense of diminished dur regards failed to with reasonable certain other perform competence use of defendant’s ing guilt present Parrish failed to evidence phase; (13) to request at Parrish failed drugs mitigation (14) the penalty phase; 2.60 any (1979 other than CALJIC Nos. penalty phase instructions with reasonable rev.); perform and 2.61 Parrish failed to rev.) (1979 (15) and (16) other regards during penalty pilase; certain competence communicate Parrish after sentence was imposed failed to with defendant counsel, Robert cooperate appellate manner with defendant’s R. Bryan. relief, case for we that the established facie
Concluding petition prima P. Judge Joseph issued an order to and subsequently appointed show cause make conclusions Kelly findings responsive take evidence and to *20 2 in the questions appear margin. leads, to trial any, report petitioner’s 2 1.What or if evidence were contained offered by public counsel his former defender counsel? 2. steps petitioner’s investigate What did trial counsel to this case? take evidence, investigation 3. any, What if of petitioner’s did in his trial counsel discover case? by 4. What or report evidence leads in the were not discovered contained above-mentioned petitioner’s investigation? trial counsel in his own petitioner’s 5. in a (i.e., Did to act inadequately represent trial counsel counsel fail did hitn advocate), expected reasonably diligent manner to be ei- competent attorney acting of a as a ther (a) by failing diligently witnesses investigate petitioner’s seek out case before trial and his behalf? by (b) failing public to review former report? defender counsel’s by (c) object per- failing by at trial to unnamed introduction of out-of-court statements petitioner sons who identified as the robber and murderer? (d) by object pe- failing during which at trial to telephone of a introduction conversation allegedly titioner police made admissions to a officer?or any (e) corpus? allegations reason of petition other in the for writ of habeas made affirmative, any subparts question (1) 6. If of counsel’s 5 is did trial answered (1979) 23 deprive petitioner Pope act potentially (People failure to v. defense meritorious 412, reasonably 732, 859, it Cal.Rptr. 1]), (2) Cal.3d 425 is 2 A.L.R.4th or P.2d [152 ab- probable petitioner have resulted determination more favorable to would 855, Cal.Rptr. failings (People (1983) sence of counsel’s 659 v. Fosselman 33 Cal.3d 1144])? P.2d 3, 1984, some The reference and closed hearing on December opened later. were parties nine months Before the referee stipulation of the evi record of the trial and the briefs. The record parties’ appellate exceeds dence and 30 volumes and argument presented hearing at the fills 4,300 The tale the tells pages.3 report follows. at least essentially
Certain critical facts as either emerge undisputed with, clearly To established. Parrish failed undertake research begin into and He failed to do so procedures capital law cases. applicable even though this was his first such case.
Further, availability Parrish neither Penal nor—despite conducted Code section 987.9 he investigation anyone funds—did retain conduct Indeed, full and independent into of the case. he investigation the facts virtually made no all. investigation at First,
The substance of Parrish’s trial was as follows. he preparation for Second, read apparently he re- transcript preliminary hearing.
viewed police reports, other tape recordings, prose- materials which cution produced under a order. In the and the standing discovery transcript facts, issues, discovery materials presented with the and potential case, witnesses crucial to the prosecution’s and also with such other matters as the existence of evidence crimes other than implicating Third, those charged. although contrary testimony evidently to his never case, met with Deputy Public Defender Johnson to discuss the he somehow obtained and later reviewed portions of the defender’s This public report.
material included the Woods psychosocial of the Kuebel report part report, which contained generally (1) the a preliminary results of factual investigation, including information activity about criminal on the possible Shay part about the “bad reputation” of the Square Apart- Cobble ments, (2) suggestions on what should be done to the investi- complete *21 Fourth, gation. Parrish interviewed defendant of and learned his troubled life, including juvenile his record and contacts with the especially law and long his and serious abuse of such drugs as PCP methamphetamine. and He also learned case, defendant’s version of the facts of including drug Ontiveros, abuse and criminal activity on the Sylvia part Shay, and the Fifth, Cowdells. Parrish sought the of Dr. appointment Glathe and ob- Sixth, tained his report. Rudy he asked Ledesma to attempt to locate a however, witness; defense potential Rudy, was without the time and the necessary training and did not locate the anyone witness—nor did else. 3 contrast, By trial, selection, including jury days was in conducted 20 court and the 1,500 only pages.
record runs to
194 above nor any of the information detailed up
Parrish did not follow on did not Specifically, pursue did he further information. attempt obtain at the time of the any further into defendant’s mental state investigation crimes charged. Glathe,
Also, Dr. Parrish of the motion to exception appoint with motions, or for prosecutor’s made no either to limit the evidence pretrial in objections no and was purposes. During jury other selection made At trial to limit the large part essentially practically nothing he did passive. his en- comments and did not witnesses or prosecutor’s questions, protect witnesses, in and was gage extensive cross-examination of prosecutor’s large essentially passive. otherwise in part
At the habeas considerable evidence corpus hearing presented childhood, adolescence, and young such matters his troubled concerning adulthood, his the severe abuse he at the hands of father including suffered PCP, LSD, and heavy methamphetamine, use of other long his He beyond bearing substances. established information dispute these was Parrish’s at and before the time of trial. possession matters within admitted, Parrish, as he himself had the of Woods4 example, reports For similarly and Dr. Glathe.5 established that further information Defendant testified from readily personal was available. Several relatives and friends defendant had been frequently as a child and adolescent knowledge 4 Post, A, entirety page in 246. report appears Appendix in Woods its 5 Ledesma, report entirety: your client Fermin SC Dr. ‘T examined Glathe’s states its County pursuant to Section 1017 of the No. 72102 in the San Jail on Mateo October repairman. year unemployed termite He Evidence Code. Mr. is a 28 old divorced Ledesma years marriage. He has terminated been was married for and has children his now March, report jail you police and other in since 16th of the details of the 1979. As know my myself to mental status examina again formation I will not them here. I limit detail will you please my wish let diagnostic information that tion conclusions. If there is further me know. cooperative and He my pleasant, “At alert. the time of Mr. examination Ledesma time, place and why oriented as to cooperated knew I was to the He was there fullest. any thinking disorder. There person. His associations were intact. There was no evidence aspect a ‘macho’ speech also certain was certain softness in his There was and demeanor. charges he faces. in-His inappropriate I felt view of the serious affect which little coop- telligence He felt that he could average. good grasp present He events. seemed had a rigors you he could upcoming legal proceedings and felt that withstand erate intellectually in which he finds himself. appreciate seem the situation trial. He did drug usage past In view of his present “I no serious mental at this time. found illness diagnosis drug dependence, princi- I would be that of important most can make at time *22 has have been times when he pally methamphetamine. suspect PCP and I rather that there is seriously I feel that he and as well as other substances. abused overused these substances probably competent I feel he was presently pursuant stand trial to section 1368 and pursuant to Section 1026 of the Penal Code. sane you any I can furnish report help be of more information hope “I will and if there with, you let please me know.” father, his by early teenage years lifelong his in he began beaten his heavily PCP using of in 1978 he drugs, abuse and that the summer of was it clear that reality. with These witnesses made appeared out of touch trial, they but that were they would have testified on defendant’s behalf to meet with contacted Parrish. Woods testified she offered by not could, in Parrish order to him with whatever assistance she but that provide Parrish did not to her offer. respond counsel,
Called defendant to his as explain performance gave Parrish testimony. described background—he extensive He his had practiced law since 1962—and his entrance into the case. In the explained summer of family defendant’s him serve as approached counsel—defendant counsel, Johnson, his then being Deputy dissatisfied with Public Defender a he negotiate plea. Although fairly Johnson’s efforts had Nevertheless, trial he had never tried case. he capital extensive experience, $15,000; family offered to for a fee of defendant’s was represent defendant $5,000, amount; he reduced his fee to the family unable afford that him, $1,000 and, he never him downpayment, retained made a alleged, paid the rest.
Defendant, continued, candid, open, Parrish was an and cooperative discussions, In their he alleged, client. defendant made a but detailed flat emotionless allegation vigorously confession—an defendant. denied in of part history It was because defendant’s in abuse and drug part of the his alleged because tone of confession that sought Parrish the ap- Dr. Glathe. pointment clearly it
Although was established that Parrish had somehow obtained portions some of the defender’s it public was report, difficult determine which At the portions. Parrish precisely hearing was each page shown it, whether report, questioned he had obtained and and re- reviewed “no,” “yes," or “maybe.” The reason sponded for this procedure follows. Parrish stated he was unable to refer to or produce copy because longer he no had it in his possession. He that in the explained winter 1980-1981, files, materials, his entire Ledesma included which these docu- items, ments and by the and other were audiotapes produced prosecution, stored cardboard box at his storage area condominium complex; leaked, the winter heavy, rains were area and the files became storage water-soaked; could, he dried contents as best he time they but moldy; became in the late autumn discarded the files a public He dump. admitted that at the time of all the docu- disposal knew not ments had been rendered illegible and did know whether had been tapes affected. He further admitted that he knew this appeal *23 and, indeed, to make by appellate counsel
pending requested had been files available. aof defense on the choice and
Although testimony preparation Parrish’s inconsistencies, emerges: following story is not ambiguities without and case, an had begun prepare the time Parrish entered the to assist in defense; agreed him and alibi Parrish discussed the defense with the court’s its he stated in development; response trial although prior defense but had a diminished question capacity that he had considered it, seriously that he not he admitted did hearing decided not to use at during in had never his such a fact he presented consider defense—which defendant; it passing remember discussing career—and could not influenced over defense he was apparently the diminished capacity confession, seeming ra- alleged detailed defendant’s nature of defendant’s his belief that a Dr. Glathe’s and tionality, report, personal the substance of not his criminal responsibility. alcohol does affect person’s drugs use of or his testimony his Parrish defended performance, In the earlier part no more was need- that he not done more because in essence had asserting a full and independent ed. as his failure to undertake example, For information he had he that the items and claimed in substance investigation, On his failure to him to for trial. obtained sufficient to enable prepare were of de- extrajudicial identification bar to the victim’s attempt reference fendant, evi- conceded that the had he in effect that the prosecutor stated it, and that introduce dence was and not to hearsay agreed inadmissible at virtual unnecessary. passivity he As to his result such thought attempt trial, have alienated might he said essence more active representation the jury. however, suddenly manifested
In the midst of his Parrish testimony, admitted story. of heart He change very different began telling a compe- effect that he reasonable only had to act with duty violated not his tence but defend- duty also his loyalty: represented during period ant energy he was gambling a result directed compulsively and as attention to his his client. compulsion and to the defense of not fully being
For example, at one was not point “My Parrish stated: time thing my devoted to profession.” really At another: “I married was [viz., “My gambling, gambling] yet and that’s truth.” And another: life, it not important, my practice, most not important my thing Fermín, before my defense of he stated anything not else.” Specifically, until trial heavily, may gambled he was during gambling straight days 3 a.m. three or three four times week and during work over a weekend consequence without as a and that sleeping, *24 about he was mentally alert. He as a of his gambling added that result $35,000 for his compulsive in He that and—but debt. admitted should he. investigation, thorough have undertaken a factual gambling—would to, reference that he should and would have to bar or counter attempted call, iden- extrajudicial the victim’s example, intercepted telephone defendant, anonymous calls identifying tification of telephone He also admitted as and defendant’s admissions. perpetrator, alleged least virtually very that he had and that penalty phase, conceded history defendant’s he should have the evidence of presented mitigation drug abuse. testimony Parrish’s his compulsive gambling supported about Randy during witnesses David Cole and Nelson. Cole stated that the period relevant gam- here he socialized Parrish and witnessed his compulsive with meth- bling. He quantities added he also saw Parrish “snort” large $2,000 or, $1,500 name, amphetamine to use its street “crank”—about worth a with By month. the time of the Cole a out hearing falling had Parrish and onwas Nelson stated parole prison after sentence. serving that he too had com- socialized with Parrish and witnessed him gambling pulsively. He added that heavily large he also saw him drinking using amounts of “crank” and some cocaine. He said that once 1976 or he, Parrish, and a third person smoked PCP on that occasion and that Parrish attempted call the Vatican but without He success. stated although he stopped socializing with Parrish on a basis regular sometime 1979 order to straighten life, out his own he continued to see him until he moved out of state in 1983 and still considered him his friend. Expert testimony was given to the effect that the use of as drugs such “crank” cocaine impairs “brain . . function . and ability to respond something crisis, new or a or to participate abstract, in more complicated thinking.” Parrish denied he used at the drugs time defendant. representing
In order to establish that Parrish failed to act compe- with reasonable tence and defense, as a result prejudiced the defendant called ex- several perts. testimony of five them is particularly relevant here. Rosenthal, M.D., when,
Fred a psychiatrist, was of the opinion here, PCP, there is evidence seriously that defendant has long and abused a defense of diminished capacity generally available and may indeed meritorious, and therefore should be investigated. He testified that is a PCP destructive “It highly mind-altering drug: produces every almost psy- chological, you can name. . . . psychiatric symptom And it all the goes [fl] condition, way to producing most serious which psychiatric is psycho- It can reality. sis. break . . . In produce complete with addition to the [fl] problems, PCP can . . . psychiatric produce problems. neurological fl[] memo- They can have problems can have intellectual defects. [Users] that, that some a property .. PCP seems ry. . addition [H] which extend have. it can chronic effects drugs don’t And that is produce *25 is beyond drug the time that the taken.” effects of
Dr. in order to determine Rosenthal further testified that be used thereby PCP and data to on a criminal defendant assemble defense, the defendant availability diminished evaluating capacity of a and subjected neurological, physical should be to extensive psychiatric, examinations, friends, inter- should be family, acquaintances is verify verification viewed to the information furnishes. Independent telling only may in not required not because the defendant interest truth, or de- memory may but because his have been also weakened from various stroyed by may use of PCP and his mind have restructured all, little, if at of the relevant events that corresponds materials version what actually happened. Dr. of the that Dr. Olathe’s did not furnish opinion report Rosenthal was “I He stated: capacity. a sufficient basis for a defense of diminished rejecting issue of anything really think that he does about addressing don’t crime, vague a rather mental condition at the time of the to make except really, of He “I don’t think that statement at the end also said: report.” It my really question. address that seems report does opinion, mentally to stand competent more with whether the man be concerned . . .” that emphasized this evaluation was done . He trial the time that at the as he faced trial in and his mental state defendant’s mental state He “I would separate were matters. concluded: charged time the crimes as the complete it is not Even far say adequate, report. that a particularly goes.” question competence rejection
Dr. far from of a diminished justifying Rosenthal added that defense, that Dr. report suggesting Olathe’s contained information capacity think, drug “And so I there given further work abuse, undertaken: that that dependence certainly and methamphetamine], [PCP a red that at.” flag would raise needed to be looked flag, something to the of a defense Turning question strength capacity diminished case, Dr. “I history in defendant’s Rosenthal stated: think that given took, Mr. and the amount of that Ledesma incon- drugs it would be almost me be in ceivable to that would that during normal state of mind Nobody taking of time. the amount could period drugs that he took [If] normal, rational, maintain a calm drug state mind with kind of response appellate abuse.” counsel’s “In is it question, your opinion, that with this probable, amount of in a state of possible, drugs, he was answered, crimes?,” “I diminished at the time Dr. capacity Rosenthal would think that that would be a reasonable consideration.” Smith, M.D.,
David E. addiction leading specialist toxicology and the founder and Free Medical Haight-Ashbury medical director of the Clinic, produce: testified to the various adverse toxic reactions that PCP can “The one the four C’s: type adverse toxic reaction is characterized Catatonia, combativeness, - individual convulsion and coma . - . [If] mind-body has the one acute . . . have this type toxic reaction will disassociative effect they very, very impaired judg- where can have severe ment, control, lowered It can have—a lot of impulse memory, impaired [1f] *26 reaction, violence can occur during particularly of one when type type it’s mixed with other drugs such alcohol. . . . type two reaction is more a chronic abuse In this
“Type pattern. [1J] reaction, of chronic PCP abuse the individual can severe be delusional with One will see on There is severe impaired judgment. varying impact memory. memory, and reason with
impairment cognitive functioning, judgment PCP, PCP. ... With memory, there tends to be a lot of impairment of memories, gray-outs, you time distortion. You tend to have where flickering event, remember this you’ll will event and then remember another but the time between the two will be distorted. .... So that there is period [H] memory, substantial on but in have impact this context individuals that very try these often will types grayouts secondary resort to to techniques reconstruct, environment, talking to in their people try figure out during you what So have happened gap. memory second- primary violence, ary memory. There is an increased incidence of particularly [K] bizarre, irrational violence with both one and two adverse PCP type type reactions.
“The third type of reaction PCP is a PCP precipitated schizophrenic reaction, where the individual has pre-existing psychopathology, particular- ly a thought disorder such as type, single and will take a schizophrenia, of PCP and have a very dose prolonged schizophrenic reaction. withdrawal,
“The four reaction would be type PCP which is character- ized cognitive impairment, depression, of this nature.” things Dr. Smith developed testimony on secondary reconstruction and mem- ory: “Our experience dealing with hundreds of PCP abusers and poly- over the years abusers is that drug they try to reconstruct what happened, mind because the doesn’t like to not know what happened particular So, is, they car they may times. not remember where their example, [1]] car, there, they they find their can’t remember it so around and got go how their A to got obtain information from others as how car from point B, time, can’t the in we’ll call the they when remember between point actually secondary memory. Primary memory you what remember [If] memory you using yourself. Secondary is what reconstruct the external bits of information.” effect, question, any, counsel’s “What if
Finally, response appellate can intent in this generally, upon the chronic use PCP area just stated, Dr. “In my Smith because of its capacity?” opinion, diminished ... thinking, psychosis, on ... it can toxic it can produce effects abstract ability form have a severe mental impact capacity potentially intent.” Nolan, criminal law attorney and certified was of specialist,
Thomas confession, has when a criminal defendant made that even opinion full and independent counsel would undertake a reasonably competent all, case. “First of I don’t explained: facts of the He into the crime, admits the means that accused merely person because think *27 crime. I committed the think accused person should assume that you lawyer to make sure the is evaluation lawyer must do an independent you, or giving the defendant is that satisfied that confession out, they are accurate. reality. Whether conform to that are coming crimes, why there are reasons and There are who confess people [¶] . . . not committed. they have to crimes individuals will admit two, assuming person "Number admits that he has crime, you prove committed the then need to determine: Can the state that independent it.[6] he committed the crime of his admission to In order to do that, you against it seems to me have to evaluate the witnesses the client. you . . . or admitted Merely because the confessed individual crime, evidence committed the mean that that doesn’t accurate, trustworthy and prosecution is reliable intends to offer information .... three, . . . the crime
“Number if that he committed the individual admits crime, you’ve if and commit come to conclusion that did that the you’ve after case and decided investigated prosecution’s challenge, very little they trustworthy subject have reliable and your you then a defense consistent obligation present have an course, (E.g., proof, People 6Without such is inadmissible. confession or admission 1, (1925) 363]; (1977) Cal.App.3d People v. P. v. 71 41 Cal. Manson Quarez [238 275].) Cal.Rptr. Therefore, are avail- must what defenses you investigate client’s admission.
able.” on, case, have included would investigation Nolan went such Ontiveros, Cowdells Shay, and the Sylvia into the
checking background He credibility with a their on cross-examination. attacking view toward ... You “Absolutely essential. investigation testified that such an lawyers and defense that have represented need to talk to the prosecutors have been they them in the all the incidences get prior You need to past, [fl] them, family, try involved to interview interview their with. You need to wives, If can you their former friends. All of that needs to be done. their witnesses, then the case weaker. destroy prosecution’s gets those two [szc] hand, you strong On the other if find out that those witnesses are [H] why have fall back on insensitivity, you may don’t have as much then way.” it that your may client have made the confession and approach Nolan counsel would reasonably was also of the opinion competent the time of evaluation defendant’s mental state at sought thorough availability crimes both to determine the of a diminished charged capac- ity defense at the guilt prepare and to for the of evidence phase presentation at the He argument phase. testified substance that the Woods penalty by itself Dr. report called for such an evaluation. Glathe’s he went report, on, did not make an unnecessary, evaluation but at most assured counsel that defendant was to stand trial. competent
Nolan also reasonably testified that counsel would have made competent numerous motions this case motions to bar refer- including, example, call, ence to the iden- intercepted telephone extrajudicial the victim’s *28 tification, anonymous and the as the calls defendant telephone identifying perpetrator. conclusion,
In that Parrish failed to opinion provide Nolan was of the assistance—i.e., defendant less than rea- with effective with performed sonable the defense. and as a result competence prejudiced Palladino, Nolan’s attorney investigator, supported
Jack an and private Such an investigation. a full and testimony necessity independent on the of “I believe testified, minimum requirements: certain investigation, he has counsel, of this regard investigation with to that competent assistance as an case, absolute investigation a three-part kind of have required would into have involved an inquiry would investigation minimum. The first [If] expected which the to prosecution that evidence and police reports, include, for wit- example, prosecution at trial. That would present nesses.” added, history, “certainly gave
He with to a defendant who regard use, rely to on that willing at I not be any history drug all of serious would Confusion, reading police even an admission. things, defendant’s account own, by to understood yet them his be guilt reports adopting his, counsel, not confused blame acts that are seeking defense to take recollection, be these drugs, all of would distorted realities under the use on, on, an I insist such that insist and a defense counsel should would there, out reality a firm investigation get to sense independent facts, account, actual not the defendant’s however distorted.” now Palladino “The second of what want to do you continued: part defenses, sort, a case of this to look towards more begins positive [ft] use, there where long history drug where are discussions extensive and has found a [Woods,] family background social worker disturbed child, abuse, much abuse as a one of the that arise questions would physical towards, you begin that to look positive positive defense offer, might evidence that the defendant is facts of diminished capacity state, defense, because of use or an drug psychological possibly insanity you to to look for wit- go through begin would want personally use, defendant’s who could talk past drug nesses who could talk about the behavior, very in fact different accounts might give about his and who past them, beor inconsistent might of admissions he had made to contradict statements of some of the witnesses’ own admissions prosecution made to them.” supposedly on, against such not counsel
Dr. went would Glathe’s Palladino report, competence directed towards “The be investigation: appears letter issue of nor the diminished stand trial state previous, and not mental the psychiatrist the comments are capacity They passing all. raised continued, Indeed, in a sense a beacon “This letter is makes.” Palladino has to suggesting methamphetamine] use of PCP and [defendant’s you but hint where explored. exploring, Even the of this would be worth have a found reason to believe psychiatrist actually good that he has stating abuse, inAnd that there’s I it has to be longstanding past pursued, think [ft] you it tell argues fact for a who in no position pursue you you rely it or on without give story willing would be *29 this, investiga- independently matters such as and an pursuing independent tion.” case,” final you
“The branch of what would be at in a capital looking Palladino, according you “is that would have to say yourself, despite do, you all the best defense could we may finally penalty end at the up phase this case. in doing And investigation, you would constantly keep mind the of issues that possibility could a play penalty role in the side case, of death jury could for life instead mitigate go finding with . . . those is regard way you to the would about penalty. go [If] that, your investigation, in the course of other examination and other your had, you he every would want to make sure that talked to wife that all you relatives, you Authority his want at like the things would to look Youth if he’s he in the as I believe this defendant Report army, committed—if was was, . . . .” you army would want to see his reports Nolan,
Like Palladino was of the Parrish failed to opinion provide effective assistance. Jinkerson, Guyton N. an attorney a certified criminal law specialist trials, with extensive experience testimony many homicide gave essentially respects was similar that of Nolan and Palladino. He ex- initial pressed an doubt that in view fee on Parrish would have agreed case, been to provide able effective assistance. “But in a homicide whether a lawyer likelihood, is retained or he’s court in all is appointed, to be going examination, involved in efforts enough through preliminary that the about, you’re dollars, number of hours that talking for thousand he’s at about a an working penny hour if he’s the client. diligently representing But I can’t how imagine a lawyer could involved in case get a serious [H] dollars, a thousand to take it even through examination. To preliminary costs, investigation time, cover the just cover his is in my it inconceivable lawyer mind that would be devoting his full time to a case for a serious dollars.” case, thousand He explained, “in a any fifty capital magnatude, to a hundred thousand dollars is a range that I think reasonable.” would is stated
Jinkerson that reasonably competent counsel would retained and conducted a full investigator into the independent investigation case, and facts of the would “not on the documents that are [have relied] by law enforcement.” supplied He added that funds for such an investiga- readily tion are available under Penal Code section 987.9. abuse, on,
When here there evidence drug went Jinkerson would also include investigation consideration the defense of dimin- consideration, stated, Such a ished barred capacity. would Dr. Glathe, if “I think I report: got this letter Dr. I
Glathe’s from would be in terms of the—there does not to be appear concerned evaluation of all in at his letter. It capacity diminished seems to be—is he competent insane And is he under 1026? stand trial? And there’s no discussion of drug not his dependency whether or would have negated specific intent of the commission of the offense the time he was under the influence of PCP, or a combination methamphetamine, of those or other drugs, sub- *30 letter,
stances, that, I think his I so based the contained in things would on of Mr. that examination adequate would concerns this was not interviewed, Ledesma, time that he’s particularly obviously where the March, Obviously, in jail he’s been since he’s not interviewed until October. influence he’s not under the of POP.” is investigation espe- it full
Jinkerson made clear that a and independent of an alibi defense cially necessary before an informed decision on the use “Well, an alibi is the my feeling made: is that defense personal can be case; can raise in a criminal that who come you people weakest defense that bias, a If the family cases tend to be members who have forward alibi [fi] alibi, concerned, solely the as far as I’m that’s is as testifying career, my I’ve defenses over using an alibi. avoided alibi practically to the fly, jury gets point if the doesn’t then quickly I think alibi because that not believa- because he’s a defense is presented client is guilty, that the try cases on some other I whenever I could to attempted ble. Where have defense, is because if prosecutor the alibi kind avoid theory, by the misstatements and show material to meet an alibi defense prepared witnesses, way your to have I think quickest then that’s the defendant or his client convicted.” motions—on such necessity of pretrial
Jinkerson also emphasized call, intercepted telephone admissibility as the questions foreseeable defendant, calls anonymous telephone and the victim’s identification the limits of the to set order defendant as identifying perpetrator—in for review on such issues also preserve trial certain issues and crucial “Well, in limits, my review stated: appeal. necessity setting On the contain record, want to really you that it me is case seems to that this can, you to attempt want prosecutor you tightly as narrow and limine, want to you 1538.5 suppress pursuant evidence pretrial witnesses, regard contain his and limit the examination of scope identification, about, the tele- to the various things including we talked [1J] call, And it. phone anonymous Ledesma did phone saying calls then it seems of what you try posture, to me that if a narrow the case on admissible, very evidence the is prosecution has that’s that this case mind, is, closely balanced case. And evidence that clearly my that there jury would or not determine that there’s to whether reasonable doubt as Mr. Ledesma was responsible the homicide.” Palladino,
Like Nolan and Jinkerson Parrish too was of the opinion failed to provide defendant with effective assistance. defendant,
Unlike called few People witnesses and did not subject them to extensive only examination. Of gave testimony these witnesses four relevant for our purposes. *31 Dr. stated that during Glathe described his examination of defendant and its He course he said charged. defendant told him had committed crimes interview, that and included no the examination consisted of a one-hour tests either or no test to psychiatric, neurological, physical, and specifically determine the truth of He alleged explained defendant’s confession. exam, of the as I
purpose the examination as follows: “The purpose attorney, obviously— understand it on these I’m not an things, again, about I that can anything talking is there can find in to an individual be of to the man. this can—it’s to attorney who And help representing mind, my you you is a rather kind of kind of see loose when what approach, “Well, can find.” His state: focus was on defendant’s mental present I only thing could find on what going present- examination would be was on ly.” focus, substance,
As a result of Dr. Glathe his explained report concentrated on mental that “I present state. did state Although report Code,” feel that he probably was sane pursuant section 1026 of the Penal he candidly admitted his that examination had not “I focused the point: that, said I probably. was not all that I rigorous at wasn’t going because asked to make that specific things determination. This was one that I said, now regret having because it’s It coming gratuitous thing— was a up. Parrish,
since this was for Mr. I my Usually told him if I feeling, my hunch. was examining that, someone I particularly charged would more rigorous.” admitted, He further “I can’t imagine myself being personally capable of about talking legal matters such as and so capacity diminished forth.”
Dr. Glathe stated that he spoke with over Parrish about the examination and, the telephone at Parrish’s in the summarized his request, opinion conversation, After report. said, that any he had no further contact kind examination, $75. with Parrish. For the paid Dr. Glathe was activity
Officer Webster testified participation police culminated in and the into entry apartment warrantless defendant’s he stated that interception Although call Officer Guerra. telephone he believed it clear that there exigent were made present, circumstances was not an defendant from the scene of immediate or continuous pursuit the crime. testimony He on the issue of consent. He stated gave no all that Santiago expect- said that defendant had called and was Dominguez ed to again. call Schatz, trial, John
Judge during who at defendant’s testified presided trial he did not drugs, see evidence that Parrish was over- taking tired, admitted, however, or was He if it true that incompetent. *32 availability of a diminished defense capacity to investigate
Parrish failed false, he be of the alibi he believed would or an defense presented with reasonable performed competence. that Parrish had not opinion Hawker, Judge the bailiff in Schatz’s courtroom J. who was Everett trial, that Parrish be under the testified did appear defendant’s during overtired, did or or to be and that Parrish drugs opined influence of alcohol admitted, however, many He that he could not recall “outstanding job.” any “outstanding” trial or of Parrish’s specific examples per- details of the Moreover, response you “Do appellate question, formance. counsel’s testified?,” said, . . . or not he “I don’t recall. know whether [defendant] did, though.” he I don’t believe [fl] the referee filed a hearing lengthy report, and exhaustive
Following only those of on allegations he to consider ineffective assistance which chose His detailed argument. findings and conclusions presented which counsel may be summarized to our as follows. directly questions responsive public in the In its 1. was contained report? What evidence defender's but into the preliminary investigation a broad entirety, contained report case, and identity, background, expected testimo- including facts of the a detailed but pre- Kuebel ny many report—and of witnesses—the pretrial which related information about study liminary psychosocial PCP drugs—the use of and other heavy and his life and his long troubled it, obtained apparently Parrish form in which report. Woods investigation Keubel’s study part report comprised Woods’ criminal related, Shay possible concerning information example, of the Cobble reputation” “bad on the activity his and information part Square Apartments.
2. the case? Parrish conducted investigate What did Parrish take steps as follows. virtually no of his investigation. preparation The substance Second, First, he transcript. hearing he read apparently preliminary standing under the reviewed the materials that the prosecution produced Third, some of discovery order. he reviewed somehow obtained and later in the the Woods report materials public report, including defender’s Fifth, Fourth, he the Kuebel defendant. part report. he interviewed Sixth, report. Dr. Glathe and his sought appointment obtained Rudy asked Ledesma to Parr- attempt potential locate defense witness. ish, however, information did follow on the detailed above nothing up any to obtain further information. Specifically, he did not further pursue into investigation defendant’s mental state. did investigation?
3. What evidence Parrish discover in his Because Parr- no virtually investigation, conducted did not discover evidence ish trial, its however, course. As he prepared for he did across informa- come tion relating to the matters: crucial to the following issues and facts Ontiveros, prosecution’s case; the identity testimony Sylvia expected Shay, and the Cowdells and their and the trou- questionable backgrounds; bled life of defendant and long and serious abuse of PCP and other drugs. *33 4. What evidence in public was not discovered report defender’s
Parrish? This evidently question assumes that Parrish did not obtain the however, public defender’s It report. in appears, he did fact obtain portions, specifically the and Con- Woods of the Kuebel report part report. Parrish
sequently, in his “investigation” “discovered” own the evidence and failed, however, leads contained therein. He to on such up follow evidence and leads.
5. (a) Did perform inadequately by Parrish to failing investigate? Yes. (b) Did Parrish perform inadequately by failing to review the de- public Yes. report? Parrish Although apparently report, reviewed the fender’s review was inadequate. Did
(c) Parrish perform inadequately byfailing object anonymous telephone calls? Yes. The excuse Parrish for his failure on this gave object and point well—viz., others as that he did not want to alienate the jury—is unpersuasive: he could have bar moved to reference objectionable to the evidence either before trial or at trial but outside the of the jury. presence
(d) Did Parrish perform inadequately failing to the object intercepted telephone call? Yes.
(e) Did perform Parrish inadequately in The referee any particular? other only considered those allegations to which counsel directed argument, concluded that Parrish’s of performance inadequate each the follow- ing particulars.
(i) Parrish failed to adequately investigate the facts of the case or research thereto, the law and procedure applicable especially regard to avail- ability of the defense diminished capacity. In the referee found support, that in generally spite fact that this was his first Parrish capital case did not research the applicable law and and concluded that he procedure, should have. Specifically, he found avail- that there were several resources able to aid defense evidently counsel cases and that Parrish trying capital none, found, made use of concluded that he should have. He also still the less above, no virtually investigation, that Parrish conducted noted conducted. he should have independent investigation full and use of a seriously not consider that Parrish did The referee also found did extent Parrish defense. He concluded capacity diminished judgment. exercise reasonable professional defense he failed to consider the Parrish on which grounds that none of the referee found Specifically, a diminished investigate even further present rested his decision not alleged confes- (1) the detail defendant’s defense was capacity adequate: defense, alleged event the is not inconsistent with sion may actually but may anything happened refer to confession itself not memory; apparent secondary (2) be the creation defendant’s simply discussions, which took place exhibited in their rationality that defendant evidently away significant from custody drugs after he had been time, diminished capacity the existence negate did period *34 not contain facts sufficient to murder; Dr. Glathe’s did report time of the (3) defense, a reject to diminished reasonably capacity counsel competent allow to inves- that have led such counsel rather contained information would but defense; belief availability (4) the and Parrish’s tigate personal further the of criminal responsi- does not drugs person’s that the use of or alcohol affect was, course, immaterial. bility of in the leads contained of evidence and Parrish failed to make use the
(ii) the In support, defender’s office. materials he obtained from the public and used her Woods Parrish should have interviewed referee determined He also defense. availability capacity to evaluate the of diminished report report prepare to concluded that Parrish should have used to phase at that and have called as a witness penalty phase should Woods and his use life evidence to defendant’s troubled present mitigating relating have used of should drugs. referee further concluded that Parrish back- report investigation questionable Kuebel to undertake further into the Ontiveros, toward Sylvia of with a view Shay, and the Cowdells grounds their attacking credibility cross-examination. extrajudicial to the victim’s Parrish failed to bar reference
(iii) attempt In the referee found of defendant. of this conclusion support identification of the identification of its critical importance that Parrish knew have made that Parrish could and should case. He concluded prosecution’s that—in jury, light identification from the an effort to keep effort would hearsay—such was inadmissible an that the identification fact have been successful. call inter- telephone to the to bar reference
(iv) attempt Parrish failed found the referee In of this conclusion by Officer Guerra. support cepted that intercepted Parrish knew the call and of its critical telephone impor- tance to the prosecution’s case. He concluded that Parrish should have an made effort to the call from the jury. He further concluded keep such effort would likely have succeeded: the tele- police intercepted call phone they after entered defendant’s residence without warrant in the apparently exigent absence circumstances or effective consent. Parrish failed to
(v) anonymous to bar reference to the attempt telephone calls identifying charged. of the crimes perpetrator of this anony- conclusion the referee support found that Parrish knew the mous calls and of telephone importance prosecution’s their case. He concluded that Parrish have should made an effort to the calls from keep jury. He further concluded in view the fact that the calls were plainly hearsay inadmissible such an effort would have succeeded. Ontiveros,
(vi) Sylvia Shay, Parrish failed to undertake an investigation of Cowdells, and the failed specifically to make effort to determine discovery whether he had obtained all the through material which he was entitled relating Shay and the Cowdells. In of this conclusion support Ontiveros, found Sylvia referee that Parrish Shay, knew and the Cow- potential dells were witnesses to defendant’s admissions and that alleged backgrounds their were He questionable. concluded that view of the case, critical importance testimony to the prosecution’s Parrish sought should have further evidence that him to mount might enabled a strong credibility. attack on their The referee also found that Parrish *35 failed the information he had in fact strong obtained to fashion cross-examin ation.7 by In the referee’s tapes provided words: “Parrish also had which had been to him the prosecution, by of Shay. Shay one which tape having was On this said to the recorded as police that the defendant told him that shot the victim six times but the actual record only shows the victim was shot three times. When Petitioner’s counsel that Parr commented ish develop did not discrepancy, [citation], that replied, Parrish T can’t Parrish admits recall’ developing discrepancy credibility. that Shay’s be would a material attack on [Citation.] fired, If Shay hallucinating the defendant did tell that six shots were then he must have been about the number of shots which Le would have been another reason for Parrish to check on desma’s mental condition at the time of the crime. tape “The police they July Cowdells on a or to the in in stated that saw the defendant Utah August. robbery August The in September. was but the later Parrish murder was week in agreed. police July asking question in Au- suggested it have after that could been gust. they agreed. Bryan’s you And In inquiries: develop that at answer to Mr. ‘And did trial, ‘No, you?’ replied, did Parrish I didn’t.’ [Citation.] Ledesma, he, tape straightening “In that same recording, put . the Cowdells . . said that
in hair straight so it curly. agreed would made this and not Parrish that the Cowdells recording. statement on the Parrish state- then concurs with Petitioner’s counsel’s [Citation.] ment that straightener Ledesma does not have to use in Parrish ad- his hair. [Citation.] develop mits he did not impeachment this area for that same purposes. And in [Citation.] recording recording Cowdell’s telling that the police started off the Cowdells with robbery defendant agreed had committed with in the re- and murder. Parrish the reference cording. Then after such a police, statement Cowdells came details. forth competence testimonial Parrish failed to make effort test the
(vii) In of this conclusion Sylvia support of Ontiveros and Sharia Cowdell. had that both women found that Parrish told referee in mentally He concluded and were unstable. seriously drugs abused case, testimony the prosecution’s critical of their view the importance incompetent. declared have to have the attempted Parrish should women juvenile to defendant’s to bar reference attempt Parrish failed (viii) than those crimes other record or to his alleged participation unproved Parrish In the referee found being for which tried. support, other-crimes existence of the knew of defendant’s record and the juvenile effect prejudicial evidence. He that in view of the potentially concluded jury. from the it keep such evidence Parrish have made an effort to should effect of the evidence He further that inasmuch as the prejudicial concluded had, Parrish clearly value it have might whatever outweighed probative would have been successful such effort. guilt
(ix) Parrish failed at the present capacity defense diminished In evidence of of this conclusion referee found that phase. support and hence that diminished existed and was fact capacity plainly strong, and, indeed, the defense was available He concluded firmly supported. have have Parrish should been aware these facts and as result should the defense. presented life and his
(x) Parrish failed to evidence defendant’s troubled present of this conclusion drugs mitigation phase. support use of the penalty seriously abused PCP referee found that Parrish knew defendant had years such time many using drugs other over and had been at the drugs He Parrish should charged. presented of the crimes concluded that evidence this issue. *36 at
As “In a situation as the case bar explained, penalty the referee death . . . very admissibility are with to the of evidence respect the courts liberal life in the to in without imposed, e.g., prison of be mitigation punishment jury an penalty. give opportunity or the death Evidence that the parole will in penalty be to the convicted the will sympathetic assessing i.e., nothing develop inquiry, line of There is in the record to show that Parrish that tried telling story. suggestions by In police helped their that those the cuuld have the Cowdells testimony as found questions, answer to the if he to who Petitioner’s counsel’s recalled the case, body by replied, couple camper stopping the in the ‘A in a the roadside.’ [Cita- Parrish bikers police tape recording Shay, Shay But on Ledesma told him two the of said that tion.] body. agrees neglected at the trial tape found the Parrish with that reference. But Parrish actually hap- develop Shay’s contrary as completely that statement was facts to what the inconsistency to attack pened. as a basis develop Parrish admits that he did not the factual . credibility Shay. of [Citation.]” consideration, be usually jury’s flj] admitted for the examination and In the case, instant is barren of not record such evidence. Defense counsel did present remotely to the jury any substantial that could be classified evidence mitigation as in punishment gain for the convicted Ledesma.” sympathy
The referee continued: “Mr. Parrish admits he did his worst at the Penal- ty Phase. He in to brought testify. knew of could have people [Citation.] He admits that his area not as it that was as could preparation thorough have By been. own his admission he Defense Counsel quit [Citation.] Jury after the T Guilty announced its verdict. In his words: tended to own give kind of after the Guilt up Phase. I should have had lot more Perhaps preparation that beforehand and been He better prepared.’ [Citation.] T goes just my gas my on: sort of lost at that energy point.’ [Citation.] recognized He brought Marynella testify he should have Woods ” admitted, at the Penalty Phase. He T think she would been useful.’ The referee went on: “As a matter Parrish abandoned his client practical at the Penalty Phase and aggravating sealed his doom with the evidence introduced - - * - prosecution Penalty Phase. - - Parrish miserably failed on a substantial put amount evidence which was available to him for the jury’s consideration in Parrish did not mitigation.
even into the go drug problems any Penalty of his at the witnesses Phase. Defendant Ledesma lost at the Penalty Phase because Parrish’s default.”
(xi) Parrish failed to request at the instructions other penalty phase than CALJIC No. 2.60 (1979 rev.) and CALJIC No. 2.61 (1979 rev.) support of this conclusion the apparently referee concluded that Parrish should have requested other unspecified instructions.8
The referee also files disposal concluded effect Parrish’s years some after the effect on the trial’s trial—although possible without result—supported, and the inference that he violated not perhaps compelled, allegation provide The referee also found true that Parrish failed to effectiveassistance by “Waiving] . presence appears . . . . .” of a material witness . The referee to have mistake, evidently done believing allegation so did referred—as it not—to Woods. testimony by judge support adequacy The referee found the trial and the bailiff in performance weight: judge, Parrish’s to be of to all little who had to alert trial, happening during might inadequacies; have noticed Parrish’s and the fact that bailiff, going trial[,]. “who claimed he alert . as to what was on in the . Ledesma state[d] *37 character, Ledesma, trial, that he did not believe that the main much of testified at the dilutes testimony.” his The referee per- concluded that proving defendant had not met his of Parrish burden formed without competence regard allegations concerning reasonable with to the his failure beaten, assaulted, juror seek the of sexually removal whose mother been and mur- had dered, and his present guilt failure to opening phase. statement at the funda- also the reasonable but duty competence
only perform duty loyalty. mental of Parrish’s and credible accurate “Accepting
In the referee’s words: contained, file wet and got how the file of what the Ledesma representation he disposition and became mildewed what fact of the contents that some it Penalty case), Death (a the dump of the Ledesma file at made allegedly competent a be of expected not to irresponsibility a of degree demonstrated Referee, Parrish on the of part such conduct attorney. In the opinion trial pre-trial his he ab initio conducted just is some evidence of how the defense elements of all other (if his investigation any) presentation, to this a case. Add capital to defend necessary into the work go that would his magnitude and the first case capital the fact that this was Parrish’s be expected could The least that becomes irresponsibility impressive. he have been is that should in such a serious case attorney competent sanctity of the to maintain every alerted to take reasonable precaution could in he whatever assistance giving file and its contents in anticipation handling attorney or some other would whether he appellate process those documents Certainly he could have retrieved appeal. automatic which documents legible. identify he admitted were Since he did not or to as to their any judgment importance were we cannot make legible, ineffectively he conducted they effectively how or what extent would show dam- alleged He water during prior the trial its was also aware process. this re- the Ledesma files but that the Petitioner’s counsel age, requested as he by got water-logged Parrish. Even when the files ignored quest Mr. With Bryan. them to he could have retained them sent represented, etc., what easily reports, of the files it could have been determined retention files, have By his of all his Ledesma we files contained. destruction reports his as to what information representation own depend upon the Referee had heard totality in his and from the what possession had credibility hearing, suspect. throughout becomes more irresponsible “The scenario of Parrish’s course of action 22, 1980, December within in the record which shows on pronounced to handle the appeal short time after his Court appointment Supreme counsel, De- dated Bryan, Petitioner’s Mr. wrote Parrish letter process, 22, 1980, him of counsel Ledesma. advising cember of his appointment . . . advised Parrish getting Parrish admits this letter. This letter also [fl] The letter to contact Parrish without success. Bryan’s attempt phone ‘all to review of Parrish importance Bryan getting together stressed files, your investigator’s reports, possession.’ relevant and motions [Cita- letter, reply. Parrish did Although receiving admitted tion.] in the record Further evidence of is demonstrated irresponsibility Parrish’s i.e., letter, ‘You should by his retort that he admitted receiving *38 called me and said you files. I have pick stinking wanted to those would up you.’ them given (or It would have been more responsible [Citation.] least common or courtesy) Bryan to either answer the letter telephone him advising that the glad files were in bad condition but he would turn only them over to him if he came to them The Parrish pick reply up.
made, record, to the according leaving is call word— alleged telephone but he identify does not what he said—nor can Parrish recall if he talked to secretary a or an answering machine. if the Nor can he recall call [Citation.] December, January, February. Parrish further admits getting other on messages his machine from Petitioner’s counsel to back—he call may admits he have called back once or twice. [Citation.] story “Parrish’s of exchange the above is not very convincing. The Refer- ee had ample to observe opportunity exchange of during ques- [him] tions (and and answers also respect questions with and answers at other times during hearing). credibility accuracy responses [his] are in the suspect mind the Referee.
“The attitude of Parrish with respect to entire case which in part the course explains of action he took or did not take with reference to his Ledesma, as responsibility attorney for forcefully demonstrated testimony . . . there should by Bryan [to have been a follow-up effect] he, file; Parrish, to get the was no longer Ledesma. ‘And I representing not did feel that I should be out there in the doing sprint help you case.’ (But is apparently overlooking the fact that his former client is sitting row.) death ‘You are by the being paid hour. I was not. If to send you want a man you down could have had the files. You knew where I lived.’ But the only address that Bryan had at the time was office box number. post 1980,
“Subsequent 22, to the . . transmission of . the letter December Parrish, Petitioner’s counsel January sent another to Parrish dated letter 28, 1981, . . . which Parrish just That letter admitted receiving. [Citation.] about repeated namely, the same message letter], earlier that Parrish [the and Bryan case, should get review the files and together to discuss the etc., investigator’s report, for a Parrish request response. did letter, respond by but he may thinks he but phoned appar- [citation] ently no contact was made anyone.
“A third letter that was to Parrish transmitted Petitioner’s counsel dated April 1981 . . . again referred the letter December i.e., repeated the letters], substance request earlier contained [the Bryan need for to talk with Parrish and the need possible as soon as to review all relevant files in his and motions investigator’s reports *39 to it. responding he it but can’t recall guessed got [Cita- Parrish
possession. tion.] . . . received attorney were two letters from Petitioner’s
“The first alleged. files previously Ledesma damage before the water Parrish time point of Parrish at this part This conduct on the course of [Citation.] Did question: . . the obvious to the Ledesma file . respect suggests] with reflect would the files material or the lack of materials which contain the defense?” way on in which he conducted negative some the manner regard, inadequacy prejudice 6. Parrish was did such inadequate any If evident that because of the referee concluded effect defense?The case, inadequacies—with each of Parrish’s identified closeness of the de- necessary conduct—subjected sole and of his exception post-trial prejudice.9 fense to concluded as report
At the end his and exhaustive referee lengthy totality testimony “From presented follows: evidence the Referee finds and recommends that the Petitioner Ledesma be Hearing, i.e., relief for in the Writ that prayed Corpus, of Habeas granted Penalty trial as Phase.” new to the Guilt Phase and also to the granted IV. Contentions on raises numerous contentions on habeas appeal corpus Defendant circumstance, As to the issues of will going guilt, special penalty. only we need address appear, one.
A. Assistance Counsel Ineffective appeal during
On both and habeas corpus, defendant contends Parrish failed him with the effective assistance guilt phase counsel—i.e., provide perform
he failed to with reasonable and as competence As subjected prejudice. explain, result defense to we shall defendant corpus. cannot his claim on but it on habeas support appeal amply supports prej proving concluded that defendant not met his burden of that he was The referee had any, following: guarantee inadequacy, regard if his udiced Parrish’s with insufficient; request instruc acquittal win because the evidence was his failure would Sergeant Kahn at phase; during guilt tions at the misstatement redirect examination uncharged suggested more robberies penalty phase which had committed cross-examination; after with defendant than Kahn and his failure to communicate stated imposed cooperate appellate counsel. the sentence of death
1. The Law *40 Under both the Sixth Amendment to the United States Constitution I, 15, Constitution, and article section of the California a criminal defend ant has the right the assistance of counsel. Strickland v. (E.g., Washing 668, 691-692, 674, 2052, ton 466 (1984) U.S. 684-685 L.Ed.2d 104 S.Ct. [80 [discussing federal constitutional v. rights]; People 23 Pope, supra, 2063] 412, Cal.3d 422 both [discussing state and federal constitutional rights].) The ultimate purpose right is to the defendant’s fundamental protect to a right trial that is both fair in its conduct and reliable its result. (See, Strickland, 691-693, e.g., supra, at 684-687 L.Ed.2d at 104 pp. pp. S.Ct. [80 at pp. 2063-2064]; 23 Cal.3d at Pope, supra, pp. 423-425.)
Construed in
light
its
entitles
purpose,
right
the defendant not
Strickland,
to some bare
but
assistance
rather to
assistance. (E.g.,
effective
692-693,
Under this right, the reasonably defendant can that in expect course of representation his counsel will undertake only those actions that a reasonably attorney competent would undertake. But he can also reason ably expect before counsel undertakes to act at all he will make a rational and informed decision on strategy and tactics founded on adequate investigation and preparation. (See, 408, In re Hall e.g., (1981) 30 Cal.3d 223, 426 637 Cal.Rptr. 690]; P.2d v. People Frierson 25 (1979) [179 Cal.3d 142, Strickland, 281, 166 Cal.Rptr. 587]; 599 P.2d see also 466 supra, [158 695-696, U.S. at pp. 690-691 L.Ed.2d at 104 S.Ct. at pp. p. [imply [80 2066] that counsel ing must make “all significant decisions in the exercise of reasonable professional judgment” (italics If added)].) counsel fails to make decision, such a his action—no matter how unobjectionable in the ab Hall, stract—is deficient. professionally (See, e.g., In re at supra, p. 426 [emphasizing the exercise of counsel’s professional discretion must be reasonable informed founded reasonable investigation and prep Frierson, v. 25 aration]; People supra, Cal. 3d at 166 [same]; p. see also Strickland, 695, 466 U.S. at supra, pp. 690-691 L.Ed.2d at 104 p. S.Ct. [80 at p. [implying “strategic choices made after less than complete 2066] are investigation precisely to the extent that reasonable pro [unreasonable judgments fessional support the limitations on investigation”].) [do not]
216
“A
assistance was so
convicted defendant’s claim that counsel’s
has
sentence
two
defective as
reversal of a conviction
death
require
(Strickland,
693,
p.
L.Ed.2d at
components.”
In whether counsel’s determining Strickland, 466 scrutiny. (E.g., supra, deferential must in exercise general see, 694, 2065]; 104 at p. e.g., Pope, 689 L.Ed.2d at S.Ct. p. U.S. at p. [80 are, justify such broadly, two reasons 424.) 23 Cal. at There p. 3d supra, scrutiny. level of of danger second-guessing reason involves the The first and fundamental sure, be Judges recognize, assistance. claims of ineffective reviewing many and that as effective assistance are the means of providing But which to use. choosing counsel has wide discretion consequence failure of counsel’s influence under the sometimes imperceptible result, judges for is often difficult practically efforts to obtain a successful it omissions, they as acts or to view and assess the reasonableness of counsel’s must, that counsel acted under at the time they the circumstances stood Hall, v. 426; People or failed to act. re 30 Cal.3d at (See, e.g., supra, p. Frierson, stated, is 25 “it all supra, 166.) Cal.3d at As the Strickland court p. court, easy too for a it has unsuc- examining proved counsel’s defense after cessful, to or unrea- particular conclude that act omission of counsel was 694, (466 sonable.” U.S. 689 at p. 2065].) at L.Ed.2d 104 p. p. at S.Ct. [80 reason, first, The second which derives from the the adverse involves systematic consequences quality have on “second-guessing” might to criminal function- legal provided defendants and on the representation system itself. justice Specifically, might tempt- of the criminal counsel ing himself a claim against to exercise his discretion defend primarily ed against his client after rather than defend ineffective assistance trial trial, interests before those thereby his own putting at charges criminal cases at Indeed, not certain be led to accept counsel even might his client. Also, increase might claims ineffective-assistance all. unmeritorious judicial cause of scarce resources. a waste
217 stated, of intrusive Again availability post- as the Strickland court “The its trial for inquiry attorney guidelines into of detailed performance challenges. evaluation would of ineffectiveness encourage proliferation Criminal increasingly unfavorably trials resolved to the defendant would trial, come to be this one of counsel’s unsuccessful followed a second serve could be ad- defense. Counsel’s and even willingness performance scrutiny of counsel and versely rigid requirements affected. Intensive independence the ardor acceptable dampen impair assistance could cases, counsel, and under- assigned of defense discourage acceptance L.Ed.2d U.S. at attorney (466 p. mine the trust between client.” [80 695, 2066].) 104 S.Ct. at p. p. however, scrutiny We that deferential of counsel’s per- must emphasize, may be altogether in extent and indeed certain cases formance is limited v. McDonald unjustified. (1984) abdication” (People “[D]eference 236, 709, 46 A.L.R.4th it 1011]); Cal.3d 690 P.2d Cal.Rptr.
must insulate meaningful never be used to counsel’s from performance scrutiny thereby automatically acts or omissions. challenged validate Otherwise, the constitutional to the effective assistance of counsel right *42 would be reduced to form without substance. deficient, addition to a showing counsel’s performance
criminal defendant must also establish prejudice before he can obtain relief
on an ineffective-assistance claim. The United States
Court ex
Supreme
pressly enunciated this
in Strickland.
requirement
(
[80 Fosselman. (33 Cal.3d at pp. 583-584.) contexts,
In certain is prejudice conclusively For presumed. example, “Actual or constructive denial of the assistance of counsel is altogether legally presumed result So are prejudice. various kinds of state interfer ence with counsel’s assistance. Prejudice these circumstances [Citation.] likely is so that case case inquiry into cost. prejudice is not worth the Moreover, such circumstances . . . involve of the impairments [Citation.] and, right easy that are identify for that reason and because the prosecu tion land, directly is easy for responsible, government prevent.” (Strick 466
supra, 696, U.S. at 692 L.Ed.2d 104 p. 2067].) at S.Ct. at p. p. [80 however, Generally, must prejudice affirmatively proved. (Strickland, Fosselman, 697, at supra, 693 p. L.Ed.2d at 2067]; 104 S.Ct. at p. p. [80 supra, 33 Cal.3d at “It is pp. 583-584.) for the defendant enough show that the errors had some conceivable of the effect on the outcome . proceeding. . . The defendant must show that there is a reasonable prob-
218 that, errors, of the
ability pro- but for counsel’s the result unprofessional ceeding have been A reasonable is a probability probability would different. (Strickland, at sufficient to undermine in the supra, confidence outcome.” 697-698, 104 see 2067-2068]; 693-694 L.Ed.2d at S.Ct. at pp. pp. pp. [80 Fosselman, chal- at “When a defendant supra, pp. 583-584.) Specifically, conviction, there reasonable lenges question probability is whether is a that, errors, factfinder absent a reasonable doubt would have had ., . When a sentence . guilt. challenges death respecting that, errors, absent the whether there is reasonable question probability of aggravating the sentencer . . . would concluded the balance at (Strickland, supra, circumstances did not warrant death.” mitigating 698, p. 104 S.Ct. at p. 2069].) L.Ed.2d p. [80 meet in that the defendant must order Finally, proof the burden claim is establish to relief on an ineffective-assistance his entitlement 554, (In 60 Cal.2d the evidence. re Imbler (1963) preponderance P.2d 6].) Cal.Rptr.
2. to This Case Application as substantially allegations makes the same Although appeal he makes for habeas defendant is constrained what petition corpus, argue he himself record to recognizes appellate inadequacy itself, Parrish’s passivity during guilt professionally constitutes phase, substance, deficient His but must performance. argument is not without rejected. nevertheless be
“In some cases . . . the why record on sheds no on counsel appeal light circumstances, acted or in the failed to act manner challenged. such one, counsel unless was asked for an explanation failed to provide unless there be satisfactory could no simply explanation, these are cases on affirmed 23 Cal.3d at appeal.” (Pope, supra, 426.) p. record,
Here, concedes, defendant impliedly sheds no appellate why conducted as he Parrish was Parrish the defense did. not asked light record on from a review of the performance. Although appeal to explain be satisfactory could explanation provid- we have serious doubt that a alone therefore, ed, to conclude it could not. The argument, we are unable rejected. must be of ineffective
On habeas defendant numerous corpus allegations makes the III, the referee hearing, assistance that ante. we discussed Part After basis and on the made detailed and exhaustive and conclusions findings with effective thereof determined that Parrish failed to provide above, recom- accordingly noted assistance in the several particulars issue. and the writ granted mended that the petition Parrish’s per concluding Attorney argues The General the referee to prejudice the defense subjected formance deficient and merit. is without argument As shall erred. we explain, legal A referee’s is settled. in these circumstances Our standard of review (1986) v. Louis (Cf. People review. subject independent conclusions are 110, 969, [discussing appel 728 P.2d Cal.Rptr. Cal.3d 985-986 180] [232 fact, As to findings generally].) late of trial court determinations review court, course, “are, may reach a different on this and we they binding at the produced of the evidence conclusion on an examination independent How conflicting. he conducts even where the evidence hearing [Citation.] ever, evidence’ are credible ‘ample, where the findings supported [cita entitled to they great weight are or ‘substantial evidence’ tion] [citation] observe the demeanor of because of the referee’s ‘opportunity [citations] their manner statements in connection with weigh the witnesses and their 200, 203, (In fn. 70 Cal.2d . . .’ re Branch (1969) on the stand. [Citation.]” Hall, 238, accord, 30 Cal.3d at supra, In re 174]; 449 P.2d Cal.Rptr. [74 is general Finally, questions a referee’s resolution of mixed law-fact 416.) p. questions law—espe review as
ly subject independent predominantly Louis, v. (Cf. cially People so when constitutional are rights implicated. of trial court determina at 986-987 review
supra, pp. [discussing appellate issue, ultimate whether assis generally].) tions Such include the questions ineffective, performance tance was its whether counsel’s components, the defense. prejudiced (See and whether such inadequate inadequacy Strickland, 466 U.S. L.Ed.2d at 104 S.Ct. p. 697-698 supra, pp. 2070].)
at p. re Attorney major General raises five to the referee’s objections He first to the referee’s conclusion that Parrish port. objects provid the facts of investigate ed defendant with ineffective assistance failing thereto, regard the case or to research the law applicable especially essence, is as follows: the defense of diminished His capacity. argument, an active in the part the referee found that Parrish created the alibi and took *44 record, use, of, defense; the decision to and in the the alibi preparation however, and insisted on establishes it defendant who created that was but to defense; present Parrish had no choice presenting accordingly, therefore, have otherwise defense; might that excused from what he was duty been his to defense. investigate capacity diminished First, al- of the General’s is unsound. premise Attorney argument may be construed though the referee uses that parts report language alibi, he appears as Parrish created the finding expressing implying whole, con- not we to have such a as finding. Reading report made an in the decision part clude the referee found that Parrish took active only use, of, found to He also impliedly the alibi defense. preparation not that defendant did insist on defense.
Second, attacks Attorney argument General’s even to the extent that noninsistence, it must of Parrish’s role findings active and defendant’s It statements following be is true that Parrish made rejected. had testimony: thought up prepared earlier part “[defendant] alibi”; it”; “He “he insisted upon giving it insisted prepared religiously and, say”; I him “I testify. on it. I to assist him to didn’t tell what agreed me, shortly alibi Fermín from the time that he met with discussed before, we And I he had worked from the first times met. as indicated few .... He me very out a different and alibi in his mind indicated complete testify that he could that he was somewhere else.” however, that it stated in effect testimony, In the latter of his Parrish part On of the alibi defense. ultimately was he who was use responsible cross-examination the occurred. following colloquy No, Mr. A. to him. I Did I fair
“Q. testifying? got Ledesma insist on him not have testify, him If I told not to he would alibi. helped prepare or not I done so. He rather But whether completely. that alibi prepared him, it out. I I don’t I had worked encouraged know. know he [U] him. I’m not just say anything didn’t have it to I want suggest don’t him, in my of. When it much putty certain comes to Fermín was pretty [^[] So, on me as hands. He was to the extent. the blame is cooperative greatest ways, far having ability in some knowledge having superior superior at least I He He what I thought. very have done cooperative. would [If] said. I know that. Who first A. and I
“Q. was the one that alibi? Fermín suggested discussed it. He had the alibi I who you suggested worked out. can’t tell I it. decided to use it. using out, Who A. He me he if
“Q. suggested first it? told had one worked you that’s what want to I work know. didn’t it out. that of say A. I can’t
“Q. you Did tell that’s what wanted do? it, him. We it. him to do he would agreed to do If I told not I’m sure idea, I you. I think done it. Whether it his idea or I can’t tell my
221 idea, tell power it his but I had may you have told before that was I my him it. Fermín in hands at that putty point. not to use was admit that.” testimony worthy is not Attorney General that Parrish’s later argues with, he contends these are inconsis- begin
of consideration. To statements desire, record, in the trial defendant’s citing expressed tent with evidence advice, story through Parrish’s to tell his at the against again penalty phase or as cocounsel. The is not testimony argument point persua- as a witness in one part: persisted sive. Parrish was unsuccessful perhaps Parrish, made a motion and was argument, through his to present desire in the other defendant did part: Parrish successful plainly refused. But was event, any In even if Parrish’s later testify during penalty phase. record, in the trial such inconsistent with certain evidence testimony is testimony. of the merely weight affects the inconsistency after Parrish mani- that the statements issue were made Pointing out heart, Attorney General also reliance argues, change fested 313, 1], P.2d Beagle (1972) Cal.Rptr. v. Cal.3d People in aid of his a claim of trial counsel they inadequacy amount to when, here, state- hence are not such client But posttrial persuasive. manifest, may not they are made counsel whose are inadequacies ments event, to similar effect any dismissed out of hand. Parrish testified be examination by change before his heart. the course of direct During counsel, said, defendant, asked, “Also, appellate you defendant’s was Ledesma, answered, “Well, defense?,” I Mr. insisted on an alibi no. on him in
can’t the sense that he me this or It put nothing. simply told or is that we discussed the for broke or an possibilities going acquittal already a life in prison. And the consensus that he had going fl[] alibi, in his own mind I prepared thought, provide was prepared, corroborate that and he for broke going witnesses to made the decision that life in I tended to taking better than That was of it. prison. part [1J] him.” agree testimony and the record of the habeas foregoing
From our review that Parrish entirety, finding we conclude that the in its corpus proceeding of, use, the alibi the preparation in the decision took an active part defense, not insist on the defense, that defendant did finding and the implied by substantial evidence. as supported must each upheld alibi defense from the insisted on the in fact if defendant had But even the use of diminished rejected consequence and had as very beginning in devel- refused to cooperate defense” and “mental other capacity would still lack defense, General’s contention Attorney such a oping *46 222 duty
merit. Counsel’s first is to the facts of his client’s case investigate to Sixth Amend “Generally, research the law to those facts. applicable I, ment and article section 15 counsel’s and active require ‘diligence partici in the full case.’ pation and effective of his client’s preparation [Citation.] attorneys carefully Criminal defense have a to all de “‘duty investigate ” fenses of fact . . may and of law that be available to the defendant. 23 (Pope, supra, Cal.3d at The client’s initial insistence on one pp. 424-425.) defense and to all others does not “excuse counsel from under opposition taking sufficient investigation defenses to enable counsel to possible pre sent v. report recommendation his client.” (People informed 926, 212, Mozingo 34 (1983) Cal.3d 934 P.2d Cal.Rptr. 363], 671 [196 when, here, italics This is original.) especially so the evidence available to counsel a mental supports by defense and the defense insisted on allegedly or, indeed, the client is uncorroborated by contradicted in whole or in part counsel, (Ibid.) the available evidence. That as a of this court plurality stated, may yield be to his on compelled right Ghent’s to insist of a of his presentation choosing defense own v. Frierson (People (1985) 803, Cal.3d 812-816 705 P.2d does not excuse him Cal.Rptr. 396]) [218 duty from his research investigate and other defenses so as to make an (see 817). informed recommendation his client id. at p. maintains, however,
The Attorney General that on the facts of this any duty case Parrish was indeed excused from in further factual engage research on the defense of He investigation legal capacity. diminished cites the from of coun following language Strickland: “The reasonableness may sel’s actions the defend substantially by determined influenced based, ant’s own statements or actions. usually Counsel’s actions are quite on informed on properly, strategic choices made the defendant and information by the supplied investigation defendant. what particular, decisions are reasonable critically information. For exam depends such when the facts that ple, line of are support potential certain defense said, known to counsel generally because of what the defendant has need for further investigation may be considerably diminished or eliminated altogether. And when a defendant given has counsel reason to believe that harmful, investigations certain would be counsel’s pursuing fruitless or even those pursue investigations may failure to not later be as unrea challenged 695-696, U.S. at 104 S.Ct. at (466 p. sonable.” L.Ed.2d at pp. Attorney General effect that the nature and tone of 2066].) argues p. Parrish believe that defend alleged reasonably confession led defendant’s and on that basis to killing at the time legally responsible ant was adds that from further and research. He pursuing investigation refrain decision was Dr. Glathe’s supported report. Parrish’s shows, testimony As the accept Attorney point. We cannot General’s and tone of about seven months nature confession—made alleged *47 to PCP and other custody after defendant had been in and denied access put mind if state of substances—says anything unlawful little about defendant’s time of adequate preliminary at the Parrish killing. Had undertaken diminished investigation and mental and general research on defenses Indeed, be- have fact. we capacity particular, recognized he would should basis of his solely experience lieve he have fact on the recognized however, as than what Parrish lawyer. a criminal defense More important, have the tone of the recognized actually recognize; should he did what admitted, confession, doubts about defend- led him to conceive alleged ant’s mental state and dismiss such not to doubts. cross-examination, following questions
Under Parrish was asked the Why Glathe’s A. gave following “Q. you report? answers: did get had been and because I drugs Because told me he a lot of using [defendant] Particularly felt that at some I to know his mental condition. point had The before he testified. there a lot of other whole nature of things. And was his attitude of remorseful about it. just being not Well, just—it just What with it? A. was
“Q. did that have to do he was A, B, C, D, of fact story telling happened matter as he me that it just was if you I tell I TV last It night. how went home and had dinner and watched way was to it. He was flat just it. There was emotion described no [fl] in his attitude a little bit triggered about it me that that’s and that to think strange.“ (Italics added.)
Further, as the Attorneys of Drs. Smith and testimony Rosenthal and Nolan, Palladino, clear, reasonably Jinkerson makes counsel competent would had some about doubts the truth confession: it alleged could have been the expression of a memory” Active rather than “secondary an accurate statement of actually what happened. can
Nor we Attorney accept the General’s claim that Parrish’s decision not pursue to further investigation and research supported by Dr. report.
Glathe’s testimony As the of both the legal medical and experts establishes, the have been report by would reasonably understood compe- tent to speak counsel more to defendant’s competence stand trial than to his mental state at the the killing, time of an insufficient provide basis to defense reject a of diminished raise capacity, indeed to issues calling further investigation and research. sum, the Attorney does General that the referee erred persuade us concluding that Parrish defendant ineffective assistance provided with research, to undertake
failing adequate investigation and especially to diminished He regard capacity. does not the referee erred in show that deficient, does not even that Parrish’s
concluding performance not have would defendant to show that result more favorable attempt failings. in the of Parrish’s occurred absence is that the referee erred Attorney objection General’s second with ineffective assistance that Parrish concluding provided extrajudicial iden bar the victim’s failing pretrial move reference to comments and object at trial to the tification of defendant prosecutor’s *48 that Parr relating thereto. He neither the conclusion questions insists that the that defendant was performance prej ish’s was deficient nor conclusion review, thereby can After we are to independent compelled udiced stand. disagree. in Attorney
The first in as follows: the argues presence General substance extrajudi- of Parrish not to introduce the prosecutor the committed himself identification, in to move failing cial and hence was not incompetent Parrish identification; to pretrial ques- comments suppress prosecutor’s unobjectiona- effectivelyplacing jury tions the identification before the were ble, move to failing and hence Parrish was not to incompetent pretrial object them or to We are not prevent persuaded. to them trial. that, not to intro- grant We commitment presented prosecutor’s with the identification, have been extrajudicial may incompe- duce Parrish that his agree tent in to we cannot failing pretrial move to But suppress. to failure to or at least pretrial move to bar all reference to the identification of to view object such reference at trial did not amount to incompetence. identification, prose- his extrajudicial commitment not to introduce the jury, to the were cutor’s comments and which the fact questions, presented Moreover, the case: they to issue in plainly objectionable. went the crucial 1978, 26, identity on who person August who robbed Flores to on presumably September returned eliminate him as a witness potential 5, 1978. In v. Nation 26 Cal.3d 179-182 People (1980) Cal.Rptr. 299, 604 P.2d to 1051], failing we held that trial counsel was incompetent any that critical jury take from the identification evidence steps keep Similarly, Parr- prosecution’s admissibility. case but of questionable to the jury ish’s failure to take from the all reference steps keep incompetence. identification also held to constitute must deficient Attorney performance The that Parrish’s argues General next testified that defendant himself did not He first asserts prejudice defendant. But, as the be heard to complain. and hence should not identification shows, testimony the point defendant’s set forth in the colloquy margin the iden- that presented by prosecutor was elicited through questioning to which commitment—questioning jury tification to the violation Thus, may complain objection.10 properly Parrish defendant made no claims in substance Attorney General also Parrish’s The incompetence. thereby references and the force of the effectively
the trial court neutralized prejudicing responding, Parrish’s from inadequacy prevented follows, Sergeant for a Traskowski’s jury’s reading to the request I.D., i.e., “In I.D. of Ledesma”: connection testimony “re: positive shown. Officer Traskowski and the identification the photographs question. being asked a direct That does not show he was transcript situation, that the attorney the manner hearsay proceeded district you.” may the court’s have disabused reporter will read While response jury of the notion that Traskowski that the victim identified testified that the ques- defendant—a notion comments and prosecutor’s improper effectively engendered—it certainly nothing tions did neutralize the force Indeed, victim stated reference. it all but that the had in fact iden- tified prohibited defendant but Traskowski technical rule of evidence from to that effect. testifying *49 conclusion, the referee’s determination that Parrish’s deficient per- First,
formance defendant must be prejudiced affirmed. the prosecutor’s “Q. (By killed, Kennedy) Why Mr. you suppose boy gas do this at the station who was you when he was shown positive A. He did not make I.D. pictures? those identified it Well, “Q. (By Kennedy) Mr. I’m not interested in police reports. the contents of the I’m just asking you how boy you, is it do think you this apartment, when were back in an identified again? A. What was that partying? “Q. Why robber, you boy you do suppose this you as the when weren’t there? even identified “Q. (By Kennedy) Mr. you any why boy you Do know reasons would have as identified Well, you man, the robber? A. George, if look at he looks a lot like me. « “Q. When you was that gas you that out attendant ’d as station had I.D. first found the robber? A. When was first I heard? time “Q. Yes. A. That he identified me? “Q. really—I Yeah. really A. I just—that’s transcript po- don’t It’s all the know. reports. lice “Q. you me, Was it after were positively arrested? A. I don’t think I knew he identified but they looking were robbery for me for murder. Well, “Q. you say ’dyou can you when it was man as the that out that the had I.D. first found got police robber? A. I reports, think— I think—I “Q. —Reading And— A. it. “Q. you get really you. got And when police reports did then? I I bust- A. couldn’t tell March, you— ined “Q. you So some time after were arrested? A. Yeah. “Q. you you Did have a hunch that the man had as the robber? A. No. identified Now, “Q. you gas police do think this that man station attendant lied to the when he said say [i.e., is the one? A. He didn’t it the one. number was defendant] four “Q. say? says something. What did he A. He that or remem- I think looks like him I don’t ber, I.D., my I It positive but know he make a didn’t didn’t from recollection of words. positive (Italics added.) look like a I.D.” Second, they to the criti- went objectionable. were
questions and comments close, Third, since there must be considered identity. cal the case issue the crimes. defendant eyewitness linking evidence physical no that absent concluding that the referee did not err Accordingly, we hold iden- extrajudicial of the victim’s Parrish’s issue failings regard defendant, more reasonably outcome probable it is tification would have resulted. favorable to defendant the referee erred objection General’s third Attorney
The with ineffective assistance concluding provided that Parrish discovery he had obtained to determine whether failing steps take pretrial Shay and the Cow- relating of all the material to which he was entitled in this regard that Parrish’s failure Assuming arguendo dells. We agree. constitutes defendant has shown that suffered incompetence, simply still estab any even raise less suspicion, therefrom: does not prejudice Thus, lish, material existed. we hold that significant additional and, such, cannot be accept referee’s error conclusion on this point ed. is that the referee erred Attorney objection General’s fourth ineffective assistance
concluding that Parrish defendant with provided and Sharia Sylvia Ontiveros competence to test the testimonial failing assume for sake that argument’s Cowdell. Here too We shall agree. we men that Ontiveros was “not basis of such statements of defendant as *50 there,” that both tally mentally “not and together,” all that Cowdell was no burnouts, is and their recollection clearly were not able to think “[drug] or at the of the women good,” competence Parrish to objected should if Parr But even investigation least have some into the matter. undertaken that showing failure defendant falls short of ish’s constituted incompetence, that not establish there possibility suffered does is prejudice: Thus, this point declared on incompetent. either woman would have been too the was error. referee’s conclusion
Finally, Attorney objects General to referee’s conclusion the the that Parrish to by failing defendant with ineffective assistance provided move at trial pretrial object to call or to suppress intercepted telephone to argues its introduction. He substance that the call was admissi plainly regarded ble and hence Parrish’s failure to it be challenge cannot however, false, The incompetence. premise, argument therefore fail. must telephone impor- threshold we observe call was of critical
At the case. Like the allegedly statements defendant prosecution’s tance to the Cowdells, Ontiveros, Shay, and the it links him the crimes Sylvia made
227 indirectly to the murder. robbery to the 1978 charged—directly August statements, unquestioned it testified to person Unlike those credibility—Officer Guerra. we
Turning Attorney argument, to the General’s premise It is challenge. conclude that call intercepted telephone beyond without a entered undisputed apartment officers defendant’s police course, entry, warrant. the Fourth Such violates presumptively v. Amendment and Welsh (E.g., taints evidence seized as result. 742-743, 732, 740,
Wisconsin
466
104 S.Ct.
(1984)
U.S.
749-750
L.Ed.2d
[80
2091,
443,
2097];
453-455
Coolidge
(1971)
v. New
403 U.S.
Hampshire
[29
564, 575-576,
Ramey
L.Ed.2d
91
v.
16 Cal.3d
2022];
(1976)
S.Ct.
People
263,
629,
9
1333];
270-276
545 P.2d
v. Dumas
Cal.Rptr.
(1973)
People
[127
871,
304,
Cal.3d
1208].)
512 P.2d
Cal.Rptr.
presumption
[109
unlawfulness,
sure,
can
squarely
be rebutted—but
burden rests
v.
prosecution. (Badillo
Court
Superior
(1956)
Cal.2d
Wisconsin,
see,
23];
P.2d
e.g., Welsh v.
at
L.Ed.2d at
supra,
p. 749 [80
742-743,
pp.
277.) call, Had Parrish well challenged may the prosecution have been successful in rebutting the But presumption of unlawfulness. so,
because Parrish failed do the state of the precludes record us from speculating on the issue. Accordingly, we cannot Attorney accept Gen eral’s claim that the call was plainly admissible.11
We conclude that to the extent that we have sustained the referee’s findings own, upheld conclusions we should them as our adopt do hereby so. It follows that defendant was denied his constitutional right the effective assistance of counsel and hence that he is entitled the relief for which he For the prays. reasons foregoing we conclude that the petition for writ of habeas must be corpus granted and that accordingly judg- ment of conviction must be vacated. *51 petition
The
for writ of habeas
in Grim. 23178
corpus
is
granted.
in
judgment
Crim. 21436 is
and
vacated
is remanded
the
petitioner
to
Court of
Superior
Santa Clara County. Upon finality, the clerk shall remit a
certified
of this
and order to the
copy
opinion
superior court for
and
filing,
attorney
shall serve
the
in
respondent
copy
another
thereof on
prosecuting
Hall,
(In
conformity
Penal Code
2.
re
section
subdivision
supra,
Bird, J., J., Broussard, J., C. Reynoso, concurred. prosecution We wish to make it do that cannot rebut clear that we not decide here the unreasonableness, presumption attempting the so to do of and thus do not it from foreclose when if and defendant raises the search and seizure issue retrial. on only
MOSK, J., the court addresses Concurring.—My opinion prepared Jr., Parrish, counsel, failed his trial Jefferson M. defendant’s contention that assistance, the resolution him and does so because with effective provide am, I is all that of this case. dispose of that issue is needed single course, I write opinion. in full with the views that expressed agreement however, conten- I of three other because believe a discussion separately, view, only meritorious issues my potentially guilt-phase tions—in other of Parrish’s in- magnitude reveal the help raised defendant—seems competence.
I
Defendant contends that
violation of the Wheeler rule the prosecutor,
from
George Kennedy, used his
strike
peremptory challenges
Hispanics
alone,
judgment
as a result the
jury
ground
group
on the
bias
that
(1978)
must be
v.
In Wheeler this established court is challenge a a exercising peremptory rebuttable presumption party If believes his constitutionally ground. party so on a doing permissible timely must raise the point is his using challenges improperly, opponent make as (1) He should facie case of such discrimination. prima make feasible, excluded are (2) persons as is establish complete record likelihood that such strong show a (3) members of a cognizable group, To make their association. because of challenged group are persons being his has struck showing, may opponent such a demonstrate party or has used a group dispropor- most or all of of the identified the members He also may show against group. tionate number his peremptories and in all only group that the jurors membership share question that his may opponent other He also establish respects are heterogeneous. dire, desultory failed to voir or indeed engage jurors these in more than he is himself a Lastly, may ask them show that at all. questions member of the victim a member alleged excluded and that group If the belong. court group majority remaining jurors which *52 made, that a facie to the other prima finds case has been the burden shifts in show the were exer- party peremptory challenges question properly satisfy sustain his burden he must court such cised. To peremptories reasons of If specific exercised for bias. the court finds that he does not were
229 burden, of the validity questioned sustain this presumption pe- 280-282.) remptory challenges (22 is rebutted. Cal.3d at pp.
The an inference appears record facts sufficient to support contain was to strike prosecutor using prospective his peremptory challenges with, A. jurors ground alone. Robert begin Bagnod bias To group Maes, Jiminez, community, was a member of the Lupe Amelia Hispanic Flores, were, and C. Alan F. evidently may Jose Carrie Corral and Porcella are, course, have been. class for Hispanics cognizable purposes 667, analysis. Wheeler v. Trevino 39 Cal.3d 683 (People (1985) [217 652, 704 v. 36 51 719]; P.2d Harris Cal.3d Cal.Rptr. People (1984) 782, 679 P.2d Cal.Rptr. [plur. opn.].) 433]
Further, there strong jurors seems a likelihood that these prospective were challenged ethnicity any because of their rather than because of spe- First, only cific bias. share in the they membership Hispanic appear community each respects. and to differ from other other For example, married, had Bagnod job, was worked in blue collar and no friends law old, enforcement; by Maes was 37 was electronics firm years employed in a evidently married to a managerial supervisory was white position, worker, 17; collar and children had 5 between the and Jiminez was ages 20’s, in her apparently mid to was late married to a man who was employed manufacturer, children, an automobile had and worked outside the home; mechanic, children, Flores was an aircraft and teenage had to a married woman in a laundry; who worked commercial Corral was a nurse and was apparently near retirement her husband was a retired age, worker, blue collar they 28-year-old son; had a Porcella married community college instructor, children, had 4 young was married to a woman who did home, not work outside the and had relatives law enforcement; Michael A. years was 20 Logan old married.
Second, the circumstance surrounding exercise of the peremptory are challenges significant. Specifically, struck prosecutor Bagnod after Maes, brief engaged Jiminez, and unremarkable voir dire. He struck Flores, Corral, Porcella, Logan without conducting examination at all.
Third, defendant is member of community. himself a Hispanic factor, however, significance of this appears to be reduced somewhat fact the victim too was Hispanic. “included a number
Finally, challenged prospective jurors Hispanic that, of individuals their [ethnicity], whose indicated absent background they in all jurors by would been probability have considered desirable *53 286, . . . .” v. Allen 23 Cal.3d
prosecutor (,People (1979) 454, of that a first cousin Cal.Rptr. 590 P.2d For Maes said 30].) example, favor strongly hers views expressed had been the victim a homicide and to the death able to views favorable expressed the death Flores also penalty. her home had been years Corral that about penalty. previously stated four including her husband’s burglarized personal property, and some items of cards, stolen, but subse suspect apprehended credit had been that a cards, in her the opinion the credit and that quently only using convicted they the case. “did the best could” on police I to make foregoing appears prima would conclude that the evidence facie case of bias.1 group was exercis- prosecutor
The record that the finding would not support Jiminez, challenge his As to the ing peremptory challenges properly. it is hearing, at the Wheeler which the addressed prosecutor expressly said, “My of mind The state justification prosecutor doubtful that appears. that, for example, I did excuse was excusing jurors on Spanish speaking Had Jiminez known Mrs. Jiminez knew defendant from school.” high school, high the prosecutor’s or even been with defendant acquainted dire, But voir Jiminez stated may on challenge proper. seemed perhaps years before and high she at their school only that had seen defendant Attorney urges General us had had no him. The other contact with that “a may assumption have acted under speculate prosecutor the juror it difficult for could make shared with the experience [defendant] however, view, to be as would want.” objective prosecutor as it under questioning as experience” appeared minimal nature of “shared defense, the prosecutor of the fact that the court and the view by I other purpose, or for “experience” asked no questions probe decline to in such indulge speculation. jurors, prosecutor the other
Regarding challenge prospective his from the record. clearly appears no and none express justification presented striking for the Attorney suggests possible General some reasons Flores, Maes, Porcella, Corral, em- recently But this court Logan. to the gave is explanation prosecutor concern with the phasized, “[0]ur court, Attorney General theory devised trial not with subsequently 722, 42 Cal.3d v. Turner (People (1986) consumption appeal.” for the court my contrary court. I commend recognize 1 I conclusion to that of trial compelled to dis sponte. foregoing I am raising for the reasons the Wheeler issue sua But Fault, however, his re with Parrish: it was agree. placed with the court but should case; but in the attempting prima facie sponsibility to least to make a assist court exercising peremp unconstitutionally significant prosecutor was face of evidence that the tory challenges, simply nothing. did *54 231 Wheeler, accord, 656, v. 22 supra, 102]; People fn. 7 726 P.2d Cal.Rptr. [230 283, event, frankly admits any Attorney fn. In the General 30.) Cal.3d at p. challenge” declines. no reasons for Bagnod “presented apparent that the effectively In concedes any. doing, even to so attempt suggest the Wheeler thereby violated Bagnod struck prosecutor improperly course, is, sufficient to challenge rule. The exercise of one improper constitutionally to a is entitled establish a violation. This is because “a party ideal cross-section of that is as near an of the petit jury approximation Wheeler, v. community (People draw process permits” random 22 Cal.3d at supra, p.277).
If to strike members of challenges used his prosecutor peremptory bias, solely on the as the record here cognizable group ground group Wheeler, show, v. 22 supra, reversal would be appears required. (People 283, Why Cal.3d at and cases this is so is “The to a fair p. cited.) plain: right and impartial jury is one of the most sacred and important guaranties of the constitution. Where it has been infringed, no as to inquiry sufficiency of the by evidence to show is and a conviction guilt indulged ” (Id. 283, jury so selected must be set aside.’ Riggins v. p. quoting People 113, 159 Cal. (1910) 120 P. 862].) [112 substantial,
Although defendant’s Wheeler contention thus appears I believe the merits could not be reached: attempt because Parrish made no below, whatever to raise the issue at time during proceedings point v. preserved for but must waived appeal (People be deemed 841, 640, Haskett 30 (1982) 776]; Cal.3d 860 640 P.2d Cal.Rptr. People [180 470, 491-492, v. (1981) 509]). Jurado 115 fn. 20 Cal.App.3d Cal.Rptr. [171 be made at the holding necessary objection that “it is that a Wheeler v. People earliest the court opportunity during the voir dire process,” 657], “several Ortega (1984) gave Cal.App.3d Cal.Rptr. “First, moving par- facilitate the
practical early objection reasons.” an will Second, early an ty’s counsel in the best facie case. making possible prima may notice so that counsel con- objection will place opposing party to continue using peremptories against sider whether and on what basis to make the best prepare explanation members and cognizable group Third, early will alert the court so that it can intelli- objection feasible. and, found, if facie case one is questions prima explana- rule on the
gently words, In other this will insure the court will close procedure pay tions. asked of and answered the jurors
attention to the and other questions on the use of bearing peremptory challenges. longer party matters make a Wheeler motion the less feasible it will waits to be for the court questions to recall answers and the demeanor of the specific jurors. Fourth, adminis- efficient and economic will
[([] procedure promote court, use finds if it discrimination justice permitting tration of jury and obtain existing panel dismiss the challenges, peremptory has been process until the selection new without to wait panel having *55 courts and Finally, help parties will the completed, procedure [[[] (Id. result, at appeal.” the both below and on achieve most fair correct 69-70.) pp.
Here, the the issue nor it after pressed Parrish neither raised because so, reviewing as as a court would had the record is not complete court done For bias group appears. to determine whether a facie case prima need the pro- what percentage Hispanic court could not discern example, or a disproportionate struck whether used jurors prosecutor spective against group. number his peremptories court, Moreover, evidently as a nothing—and Parrish did because nonfeasance, notice on put prosecutor little more—to result of did the record is was required, that a of his use of justification peremptories need to whether court would determine as a complete reviewing jurors proper grounds. on prosecutor struck prospective must be Hence, the incompleteness incomplete the record is because it or Wheeler issue to press failure of Parrish raise attributed has motion, the point I would conclude the court did so on its own when reject compelled be accordingly woulcj for preserved appeal not been the contention the merits. reaching without
II should not Defendant call telephone contends that the intercepted As- been prejudicial. that its evidence was admitted and introduction into for in the suming the time absence being that the merits could reached contention, below, attempt part Parrish to the point raise as I shall explain, appears to be sound.
The applicable substantive law is Fourth Amend well settled. Under the ment a entry by warrantless the police into a is presumptively residence unreasonable and therefore unlawful. v. Wisconsin (E.g., (1984) Welsh 740, 732, 742-743, 466 U.S. 2091, 749-750 L.Ed.2d 2097]; 104 S.Ct. [80 v. Ramey 263, 629, People (1976) 16 Cal.3d 270-276 545 Cal.Rptr. [127 1333].) P.2d The rule entry whether the applies is made to search Coolidge v. (e.g., Hampshire 443, evidence New (1971) 403 U.S. 453-455 575-576, 564, L.Ed.2d S.Ct. v. 2022]; 91 People Dumas Cal.3d (1973) 9 [29 304, 871, 512 882 P.2d Cal.Rptr. 1208]) to seize a person (e.g., [109
233 Ramey, Welsh, 742, 2097]; at p. 104 S.Ct. p. L.Ed.2d at at 748 supra, p. [80 270-276). at pp. supra, the war comply are failure present,
When circumstances exigent Welsh, S. at p. 466 U. (E.g., supra, [80 is not fatal. requirement rant 270- at pp. 16 Cal.3d 742, Ramey, 2097]; supra, at p. S.Ct. p. L.Ed.2d at however, established, require the warrant “exceptions 277.) It in number “few are exigent-circumstances ment rubric] [under (Welsh, at p. L.Ed.2d . .” at supra, p. . carefully delineated’. [80 two see, Only 270-277.) Ramey, pp. 2097]; e.g., supra, 104 S.Ct. at p. of a us: hot pursuit on the facts before potentially applicable are exceptions 38, 42-43 427 U.S. (1976) v. Santana felon States fleeing (United *56 305-306, 387 U.S. 300, Hayden (1967) v. 2406]; Warden L.Ed.2d 96 S.Ct. 787-788, 782, 294, 1642]), prevention 87 S.Ct. L.Ed.2d 298-299 [18 (1970) v. Louisiana (Vale of evidence the imminent destruction or removal 409, 413-414, 30, The United 1969]). 90 S.Ct. U.S. 35 L.Ed.2d 399 [26 moreover, Court, these two made it that each of plain States has Supreme The former an “immediate narrowly requires must be construed. exceptions a crime.” (Welsh, or continuous of the from the scene of pursuit [felon] 745, The latter 2099].) at 753 L.Ed.2d at 104 S.Ct. at p. p. p. supra, [80 Vale, that the imminent. (See threatened destruction or removal be requires 35 at L.Ed.2d at supra, p. pp. 413-414].) [26
Failure to not fatal when comply with the warrant is also requirement Vale, given. consent is 16 Cal.3d (E.g., 35; (1976) v. Leib supra, p. People 869, 433, effective, 873 must consent 548 P.2d To be Cal.Rptr. 1105].) [129 218, 222 voluntary. v. 412 U.S. (E.g., (1973) Schneckloth Bustamonte [36 854, 860, see, (1968) L.Ed.2d 93 v. Carolina 2041]; S.Ct. North e.g., Bumper 543, 797, 802, 1788].) 391 U.S. 548 88 S.Ct. L.Ed.2d [20 circum from all the to be determined “Voluntariness of fact question is Bustamonte, 248-249 412 U.S. at pp. supra, . . .” v. stances . (Schneckloth is whether on the issue bearing the factors 875].) Among L.Ed.2d at p. [36 confronted consenting party while has been obtained “consent likely is of policemen of a number The presence officers. many police which does not undertaking contemplating are that the police suggest from whom permission individual cooperation upon depend Thus, of a true that ‘the although presence it is being sought. is search is se per . a situation which . . does not present of officers number large in a may finding others well result coercive,’ in tandem with fact LaFave, Search and Seizure voluntary.” (2 consent was 642, Another factor is LaFave].) fn. omitted 8.2(b), p. (1978) [hereinafter § liberty of his “significant interruption experienced consenter whether 234
of movement as a
actions’
v.
police
(People Springer
result
[citation].”
209, 213
(1983) App.Div.2d
86];
generally People
92
N.Y.S.2d
see
v.
[460
99, 111,
447,
10
(1977)
James
19
fn.
561 P.2d
Cal.Rptr.
1135].)
Cal.3d
[137
moreover,
observe,
It is
are
police
“When the
important
relying
search, they
as the
have no
upon consent
basis for their warrantless
more
LaFave,
authority
they
than
given
(2
have been
consent.”
supra,
624,
accord,
8.1(c),
cited;
v. Harwood
p.
(1977)
authorities
74
People
§
460, 466
519];
v.
Court
Cal.App.3d
Cal.Rptr.
People Superior
(Arketa)
[141
122,
10
(1970)
Cal.App.3d
Cal.Rptr. 316].)
[89
Amendment,
If the
violative
challenged police conduct is
of the Fourth
course, the
that all
as a
exclusionary rule
evidence obtained
result
requires
643,
conduct be
v.
367 U.S.
(E.g., Mapp
(1961)
such
Ohio
suppressed.
1085-1093,
1081,
646-660 L.Ed.2d
81 S.Ct.
v. Cahan
1684];People
(1955)
[6
905,
434,
513].)
44 Cal.2d
445-450
P.2d
A.L.R.2d
subject
on the
burdens to which the
are
evidentiary
parties
The law
also
burden
that the
showing
bears the
police
well settled.
*57
v.
Court
Cal.2d
unlawfully. (Badillo
Superior
(1956)
officers acted
entry,
has
a warrantless
the
23].)
P.2d
When the defendant
shown
272 [294
entry was
the
to
that the
nevertheless
prove
shifts to
prosecution
burden
Welsh,
see,
466
748
U.S. at
L.Ed.2d at
supra,
p.
(Ibid.;
e.g.,
reasonable.
[80
270-277.)
742,
pp.
16 Cal.3d at
Ramey,
myOn
review of the
call
appears
the intercepted telephone
have been inadmissible as the
conduct. It is
product of
police
unlawful
Webster, Habina,
undisputed that Officers
entered defendant’s
and Guerra
apartment without a
circumstances
warrant. It does not appear
exigent
existed. The
in
do
either
police
not seem to have
engaged
been
“immediate or
the scene of a
continuous
of the
from
pursuit
[felon]
745, 104
(Welsh,
crime"
S.Ct.
supra,
p.
Moreover, and Millie Domin- Santiago it doubtful that Lawrence appears testified entry. Although to the Officer Guerra guez voluntarily consented in,” on being she and the other officers were “invited it seems that and by Santiago Dominguez confronted three and uniformed officers armed they voluntarily had little choice if consented to matter. But even any entry, they there is no search. And gave evidence consent to they event do not to have consented appear interception arrival, announced they call. their were telephone looking On the police Hence, defendant. and on the Santiago Dominguez gave consent officers’ arrival have extended to a search for defendant’s appears only entered, person. they Once the police Dominguez ordered Santiago move, remain then living room not searched for defendant they After throughout apartment. finished their search without finding defendant, the telephone Domin- rang; prohibited Santiago and police receiver, from guez it; answering and Officer Guerra iden- picked up “Millie,” tified herself in Spanish as intercepted allegedly statement made defendant. In view of the fact that at time the telephone rang Santiago Dominguez were “confronted officers” many police (2 LaFave, supra, 8.2(b), p. 642), and had experienced “significant inter- § ” ruption liberty of movement as a result of action’ police (People [their] v. Springer, supra, App.Div.2d p. 213), they to have appear do given voluntary consent to the interception the telephone call.
The introduction of the intercepted easily call could not telephone held harmless. Because right defendant’s to be free of searches unreasonable *58 and seizures guaranteed by involved, the Fourth Amendment is the court would be compelled to the reversible out in v. apply Chapman error test set 705, 386 (1967) 824, 18 U.S. L.Ed.2d 87 S.Ct. 24 A.L.R.3d [17 California That test a provides “before federal can be 1065]. constitutional error harmless, held the court must be able to it declare belief that was harmless (Id. beyond a reasonable 710-711].) doubt.” at 24 pp. L.Ed.2d at p. [17 Chapman court Fahy reiterated the it v. Connecti- approach adopted had cut 171, 375 (1963) U.S. 85 L.Ed.2d 84 S.Ct. “The is question [11 229]: whether there is reasonable the possibility complained evidence have might the at contributed to conviction.” at 86-87 L.Ed.2d (Id. pp. [11 issue, p. 173].) When a fundamental constitutional is at under right standard evidentiary erroneous are harmless: “An error rulings seldom admitting plainly jury ad- relevant evidence which influenced the possibly versely to a v. cannot... be litigant (Chapman conceived of as harmless.” California, 23-24 the supra, L.Ed.2d at Here pp. pp. 710-711].) [17 case, intercepted telephone call was to show plainly relevant the tending 236 robbery
as it August does that defendant was involved the 1978 Moreover, had a the state- motive to commit murder. because consequently himself, the tele- by intercepted ment ment was made allegedly may well have phone jury. call influenced substantial, I Even be believe the merits though contention appears could not be reached of Parrish’s failure to the issue preserve because timely v. 22 (1978) Lilienthal challenge police (People conduct. 891, 910, 706]; (1975) Cal.3d 896 587 P.2d v. Jenkins Cal.Rptr. People [150 749, 705, Gallegos 13 753 532 857]; Cal.3d P.2d v. Cal.Rptr. People [119 229, 242, (1971) 4 Cal.3d 249 481 P.2d Had Parrish Cal.Rptr. 237].) [93 made put such a would have been on notice and challenge, prosecutor might entry evidence and to show that the presented argument lawful that the v. (People or call was admissible. intercepted telephone 563, 161, Hence, Flores 68 567 P.2d I 233].) Cal.2d 440 (1968) Cal.Rptr. [68 accordingly would conclude has been for point preserved appeal reject would the merits. compelled reaching the contention without
Ill in misconduct on sever- prosecutor engaged Defendant contends that al being point preserved occasions. time Assuming failed to make of the fact that Parrish in each instance appeal spite whatever, have merit. objection the contention appears “a dishonest act or an implies The term misconduct” “prosecutorial use deceptive or jury by ... the court attempt persuade 60, 75 70 Cal.2d (1968) v. Beivelman reprehensible (People methods.” [73 accord, 521, 8 (1973) v. Cal.3d 913]; People Chojnacky 447 Cal.Rptr. P.2d 759, 106, [plur. Accordingly, 505 P.2d opn.].) 766 Cal.Rptr. 530] [106 means. victory improper term all to obtain designed includes acts upon depends has misconduct prosecution “Whether committed be shown to faith must circumstances of each case bad particular . .” v. 47 (1975) . . Romo (People establish the existence of misconduct accord, 976, (1976) v. Gomez 684]; People Cal.App.3d Cal.Rptr. [121 731].) Cal.App.3d Cal.Rptr. *59 First, en- the prosecutor Defendant raises several he claims complaints. of gaged jury ground in from the the by striking misconduct Hispanics issue, explained, appears alone. the I have group bias Because Wheeler as merit, point. have so too does ques- claims comments and
Defendant also that the prosecutor’s repeated tions were deliberate at- to the victim’s identification relating extrajudicial not to before the evidence he had committed himself tempts place jury introduce, appears and as such This also point amounted to misconduct.
have merit. the
Although extrajudicial refrained from the prosecutor introducing directly, the jury identification he nevertheless it before repeatedly placed through comments and For at of his questions. beginning example, opening statement he his first reference “Mr. made identification: got Flores a license that gave number was involved and the license number to the police. The did some license police investigating with to the respect number. Then they a folder with a in the compiled lot photographs folder. One photographs of these was of Mr. The San Police Ledesma. Jose then Department took this folder with the including photographs, Ledesma, photographs they Mr. out Mr. gas station and contacted Flores there and asked him if he recognized anyone these photographs, way Now, no indicating one these was a as people suspect, [fl] that, result of a complaint against was issued Mr. Ledesma being identified as the man who robbery committed the the gas station ... .” (Italics added.) At another point his opening statement he said: “And further Flores, quite man, was upset Mr. hard-working young [defendant] him, identifying having the nerve identify Mr. Ledesma the robber.” (Italics added.)
In his questioning witnesses the prosecutor unmistakably implied the victim had identified Ontiveros, defendant. Examining Sylvia he asked: “Did Fermín ever you tell he how found out that the identified witness him?”
In his closing argument the prosecutor extrajudicial iden- placed tification before jury yet again. At point one said: “You have motive, you number, have flight, you have license have the iden- you a photograph.” (Italics added.) At another he “It isn’t stated: tificationfrom just the license number. It’s (Italics It’s motive. the identification.” added.) At you still another he said: point acquittal,] vote for You’re “[If to be going saying that it’s reasonable that there awas misidentification just victim when the victim didn’t have looking photographs, size, way idea about the talked. Didn’t know which one person had motorcycle looking when at the and identified Mr. pictures out, Ledesma. All he had was a face. just Picked him at the face. looking him, Not anything else knowing knowing about not hearing speech, that he the motorcycle had knowing was used the crime. Not how the man was dressed and so on. That’s the man he Just face. out. picked And all of these saying things could have been cooked could been up, contrived.”
238 in to not in his facts argument
It is for the to refer prosecutor misconduct 719, 1]; P.2d v. Cal.2d 724 (1952) evidence. Kirkes 39 (E.g., People [249 242, It is miscon- 636].) v. P.2d also (1952) Evans Cal.2d People [246 he him the facts through questions duct for the existence such suggest 457, Cal.Rptr. 619-620 Wagner (1975) asks. v. Cal.3d (People cited.) 532 P.2d 105], cases have engaged the appears
Under these rules prosecutor plainly the referred to examination he argument repeatedly misconduct: in it it though treated as victim’s identification of defendant and extrajudicial were questions a fact in The comments and prosecutor’s were evidence. do, and did manifestly them he intended improper through because do, to do that himself not indirectly fact the he had committed very thing i.e., directly— victim’s identification jury extrajudicial before the the place of defendant. sure,
I the recognize, jurors commonly to be that are instructed—as were jurors here—that statements not I recognize counsel are evidence. also must that it be the generally presumed jurors that can and will follow Nevertheless, instructions to them. I do not that given believe the instruc- that not tion counsel’s statements are evidence makes the comments and at issue here or even them taint. questions proper danger cured of their The comments such mislead is no questions may imaginary that means Indeed, it case in fact negligible. jurors the were plain testimony display Sergeant misled. in his about the Although photographic defendant, say that victim identified actually Traskowski did not had one point closing argument although prosecutor emphasized such testify, evidently not believed that jurors that Traskowski did so request deliberations their first testimony indeed been given: during had I.D., “re: testimony positive the court for a of Traskowski’s rereading i.e., I.D. of Ledesma.” comments in effect that Attorney argues prosecutor’s General what implied stated or merely
and questions proper they were because evidence, i.e., iden- jurors victim reasonably could from the infer tified Although prosecutor defendant. The must argument rejected. be inferable from may fairly generally with conclusions present jurors evidence, effectively he may places not do the conclusion so when here other- jurors before himself to introduce: evidence he has committed wise, as we what indirectly he would allowed do explained, has in effect himself directly. prohibited do
Defendant also testi- complains that the elicited prosecutor improperly mony that anonymous callers told telephone police
239 perpetrator charged. following crimes point supported by portion of the prosecutor’s defendant. cross-examination of Yes,
“Q. You have read all the I reports, you? haven’t A. have. police “Q. you in, And do have all T why saying idea those people phoned known, Yeah, don’t my want name you— but’— A.
“Q. ‘Fermín is the guy that did it.’ A. What?
<6
“Q. (By Mr. You Kennedy) just talking reports were about the police few minutes A. I you Do remember that? Um-hum. over ago. gone them couple times.
“Q. you And you indicated that knew that a bunch people phoned and talked A. about how it and who it and so forth? Um- happened did hum. Now,
“Q. why you do you all to frame suppose up, those wanted people back there at that time? A. I don’t know. I don’t even know some of Some people. people said Jack in the it Box—they people, heard from other know, you some lady says that some guy just got works with her. He’s out prison somebody is on You parole. don’t want his name mentioned and—so he’s going through her.
“Q. All right. Let’s talk lady about her for a minute. This is the who works at a local factory? A. I my have to look at I notes. Can them? get Well,
“Q. let’s just remember, talk you about what if you don’t mind. Now, Mr. “Q. (By Kennedy) you anonymous indicated that one of these tips you you recall was from a man who overheard talking at the Jack say Box. Isn’t that A. I didn’t that.” right? prosecutor
Also relevant on the is the point question posed to Ser- geant Kahn on redirect examination on rebuttal the answer the officer gave: “Q. Have all said Fermín anonymous tipsters] was the one who [the actually did the . . .? A. That’s correct.” killing
It is “intentionally misconduct for elicit prosecutor inadmissible testimony.” (People v. (1976) Cal.App.3d Sims Cal. Rptr. *62 437, accord, Cal.Rptr. 464
566]; King v. 266 (1968) Cal.App.2d People [72 prosecu- to find that the it be difficult 478], citing authorities.) Here would was inadmissible—it the evidence he elicited was tor did not know that evidence—the intentionally elicit such that he did not hearsay—or plain he did very evidence manifestly to obtain the of his purpose questioning Thus, engaged to have appears in in this regard prosecutor fact obtain. in misconduct. in miscon- engaged the prosecutor from the whether
Turning question duct, hold that the misconduct I it be difficult to observe that would therefore, iden- close; extrajudicial evidently harmless. The case was 26, on August the victim establishing tification in who robbed was crucial 1978, It that there a a half later. follows and hence killed him week and who misconduct but for the prosecutor’s would be a reasonable that probability have resulted. an outcome more favorable to defendant would Nevertheless, in engaged that although prosecutor defendant’s claim substantial, for I believe is not preserved misconduct it prejudicial appears to be but would have hence could not be resolved on its merits appeal must be at the threshold. To such a “miscondúct rejected point, preserve be instructed jury as error at trial with a that the assigned request 698, . . Ko 18 Cal.3d Wong its effect . .” v. Chi disregard (People (1976) 392, in 557 another Cal.Rptr. 976], ground 723 P.2d on disapproved [135 1, 1, 468].) P.2d Rptr. v. Green Cal. 609 People (1980) Cal.3d seeking a of misconduct without object assignment or make the Simply Beivelman, v. supra, is generally enough. (People curative admonition rule, course, is ‘the trial 75.) at “The reason p. 70 Cal.2d thus, if the abuse should be an to correct given opportunity court effect the minds upon instructions the harmful suitable prevent possible, ” Green, make Parrish failed to v. at Here 27.) the jury.’ (People supra, p. on raised of misconduct any of the instances any objection whatever appeal. request a for a misconduct requiring assignment the rule
To miscon of prosecutorial a claim preserve admonition order curative Green, 3d is, 27 Cal. at duct, People supra, v. there court held reach the may nevertheless court reviewing a single exception: page and request of misconduct assignment if a timely claim of such a merits however, exception, the harm. The not have cured would for admonition fails to show this record: defendant not to be applicable appears clear, for exam This is incurable. misconduct was of prejudicial instance extrajudicial victim’s references to the to the prosecutor’s regard ple, admoni of misconduct and timely assignment A of defendant. identification itself, likely would comment, not prejudicial which seems first to the tion assume, also, have cured the harm and would I have deterred the prosecu- tor from engaging further misconduct of the same sort. “There accord- no ingly ground general excuse defendant from the requirement Green, timely objection, and the v. must be deemed waived.” point (People supra, 35.) p. argues
Defendant prior Green second existed—“where exception *63 closely the case is of balanced and there is doubt defendant’s grave guilt, of materially and the acts as misconduct are such to contribute to 331, v. Berryman verdict” 6 (People (1936) 136])—and Cal.2d 337 P.2d [57 that because Green was decided after his trial was completed, exception should remain available to him. of “judicial
It is course the rule that general decisions ‘retroactive apply Indeed, ly.’ on system based has a built-in legal precedent [Citation.] 638, v. presumption retroactivity.” (Solem of 465 642 (1984) Stumes U.S. 579, 586, 1338, accord, L.Ed.2d 104 S.Ct. v. 1341]; Guerra People
[79 385, 37 Cal.3d (1984) on Cal.Rptr. 635].) 690 P.2d In reliance Guerra, 399-402, v. People supra, at pages defendant maintains that Green be given only should prospective effect it of because established a new rule law that was contrary to a rule. I am not prior persuaded. merely
Green restated the well-settled rule that of the issue prosecutorial misconduct is preserved only for appeal timely objection if a was made.
That decision did indeed disapprove the language Berryman quoted above. But that language, which had neither historical nor legitimacy ana- soundness, lytical had been “ignored” by “a line of cases in this parallel Green, court” v. (People supra, Cal.3d at be 34), and hence cannot p. characterized a prior contrary on justifiable rule which reliance could have been placed and thereby which would bar normal retroactive operation of Green. if
Even Green had in fact rule there was a prior established new when rule, contrary prospectivity In Guerra the court compelled. would not clearly implied plainly rule except points where new purpose toward prospectivity, “justifiable of reliance on an old rule existence make, contrary” on necessary may before “the courts choose to grounds of policy, of exception ordinary retrospective ‘the assumption threshold, operation’ (37 401.) purpose Cal.3d at At the p. [citation].” the Green rule does not nor appear plainly toward point prospectivity, does defendant contend there- possibility otherwise. of prospectivity, fore, on turns whether there justifiable Plainly reliance. there was none: “excep- relied on the reasonably
no defense counsel would competent misconduct the issue of Berryman prosecutorial tion” stated preserve for appeal. for purposes I believe the does survive
Accordingly, because point review, prose- I defendant’s claim reject would be appellate compelled merits. cutorial misconduct without its reaching only sum, that it not of such incompetence magnitude In Parrish’s but also trial reliability proceedings undermined the completely only before this court raising threatened to defendant from preclude than, course, claim—that ineffective-assistance contentions—other incompe- of such guilt. light issue of were meritorious potentially defense, the subjected tence to which it resulting prejudice and the with the provide conclusion is Parrish failed inescapable: *64 of counsel. effective assistance of
GRODIN,
for writ
J.
I concur
the judgment granting
petition
note, however,
I
vacating
judgment
habeas
of conviction.
corpus
evidence of
that
defendant claims that there was insufficient
appeal
so,
itself. If
intent in
victim
the murder
carrying off the murder
other than
(Burks
(1978)
v. United States
retrial on that
circumstance is barred.
special
1,
27
Thompson (1980)
I concur the decision constitutionally adequate representa- I that defendant did receive agree placed has carried burden attorney. I believe that defendant by his tion demonstrating that counsel’s of corpus for writ of habeas a petitioner confidence in the to undermine as inadequate inept sowas performance of the adversarial verdict, breakdown consequent that there Therefore, is directed. guarantee the constitutional which toward process has demonstrated majority that agree I do not while omissions, must be the judgment a result counsel’s prejudice specific set aside. by which standards that the acknowledge appropriately majority The usually deter- of counsel assistance for ineffective a judgment
reversal 243 counsel, mined under both the guarantee Sixth Amendment effective 15, I, of article section of the California Constitu equivalent guarantee tion, require omis defendant demonstrate that counsel’s errors and have sions caused him He must show that identifiable specific, prejudice.
but reasonably likely for counsel’s have failings decision reached would 668, been v. different. 466 U.S. 693-694 (Strickland Washington (1984) [80 674, 697-698, 2052]; L.Ed.2d 104 S.Ct. v. 33 (1983) Fosselman People 572, 855, Cal.3d 583-584 majority 659 P.2d also Cal.Rptr. 1144].) [189 recognize collaterally judgment by petition when defendant attacks a writ habeas corpus proving upon he bears the burden facts (In which his right to relief re turns of the evidence. preponderance 190, 833, Lawler re (1979) 1257]; Cal.3d 588 P.2d Cal.Rptr. [151 293, Imbler (1963) 60 Cal.2d In my 387 P.2d Cal.Rptr. 6].) view, however, burden, has not has not petitioner majority met and the properly under applied granted. rules which relief is to be
In particular, the majority finds implicitly counsel’s failure to prejudice further investigate and present a opinion diminished defense. The capacity nowhere identifies the manner in which such a led might defense to a verdict, more Instead, favorable however. burden on the overlooking the defendant, the majority assert that the have not a more People shown that favorable result would not have resulted such a presented had counsel however, defense. The question, is whether defendant has offered evidence *65 that counsel should have discovered that dimin- supported would have a defense, capacity which, offered, ished if a more might have led to favorable verdict.
Although experts medical and offered at the habeas psychiatric evidence reference on the of PCP the of a corpus hearing cognitive on abilities impact user, one dimin- testified that believed defendant would have had intent, form More capacity ished to neither had examined the defendant. neither from
importantly, suffering offered whether opinion person the of diminished been type believed would have capacity present defendant could have steal. In a felony-murder prosecu- had an intent to tion, course, it is not that had the necessary to establish the defendant deliberate, ability or to did intend to or to kill or to the premeditate killing, to harbor malice. All that must be is that the occurred killing established case, of, of, during commission or as in commission attempted The robbery. only mental state that diminished might capacity affected such case would be of his the intent the victim deprive permanently The property. record suspect offers no basis on which to that defendant mind, unable to drug might achieve this ingestion state of evidence 244 based robbery degree of first jury guilty that he was persuaded felony-murder
on a theory. to exclude pretrial to move failing next faults counsel for majority as Two of defendant. extrajudicial the victim’s identification reference to First, me. omission trouble flowing from this analysis of the pects prejudice the failure practice, motions are common “in limine” although pretrial circumstances prejudicial motions cannot itself be considered make such occasion trial. As had binding is not at we on the motion ruling which a 870, Cal.Rptr. 885-886 36 Cal.3d Campa (1984) to note in v. People [206 Code 114, to Penal to motions made 634], pursuant 686 P.2d as except at 1538.5, to reconsideration subject on such motions are rulings section offered, is not made objection if actually trial is when evidence ruling. (See notwithstanding pretrial is objection time the waived 729, Cal.Rptr. 735 v. 15 Cal.3d People Superior (Zolnay) (1975) Court [125 798, Court (1967) 542 P.2d Saidi-Tabatabai v. 1390]; Superior 257, Beasley 510]; (1967) v. Cal.Rptr. People Cal.App.2d [61 reason, only objec 485].) 76-77 For that Cal.App.2d Cal.Rptr. addition, of the from clear that evidence tion at trial crucial. it is far hear out-of-court victim was inadmissible identification evidence was say. only That conclusion assumes that the relevance of that the robber. But for the truth victim’s statement—that defendant was defendant, aware being statement was also relevant establish identification, had a for murder—to eliminate the witness— motive failure in this identity of the killer. Counsel’s and thus establish therefore, that his here performance does not the conclusion regard, support to learn of the jury specific by permitting caused to defendant prejudice identification. establishing prejudice similarly carry failed to burden
Defendant the inter- of evidence of object result of counsel’s failure admission suppress exclude or motion to call. While it is true that on cepted telephone *66 establishing of bear the burden People without warrant the evidence seized has seizure, here, the defendant corpus, habeas of the the lawfulness meritori- have been would a motion exclude of establishing burden he, the seizure lawful. not whether Thus must establish People, ous. of conduct and entry subsequent no to establish that the offered evidence He of the home. occupants the consent officers was police inadmissible, show that failed to that the evidence was to establish failing object. failure to counsel’s by prejudiced he was un- counsel under which Nonetheless, that the circumstances I conclude defendant, he conducted and under which of representation dertook attorney no of his own were such trial, making, circumstances although effectively could a a defense to present meaningful competent capital in which the a skilled and charge required loyal issues were and complex advocate. Counsel’s failure to defenses that should have been investigate him; apparent his objections; failure to utilize available evidence and his admission that his essentially trial nil as preparation performance were a result of his own compulsive gambling, consequent lack of lack sleep, of alertness; mental his his abandonment of client proceedings subsequent guilt phase; with the other coupled omissions identified referee preclude any confidence in the degree verdict first murder and appropriateness the verdict death.
In circumstances in which it is established
although
counsel has been
defendant,
duties,
afforded
he is
unnecessary
unable to
it is
discharge
to identify specific prejudice. “The
to the effective assistance of coun-
right
.
sel is
. . the right of the accused to
require
prosecution’s case
survive the crucible of meaningful adversarial
When a true
testing.
adver-
sarial criminal trial has been
may
conducted—even if defense counsel
made demonstrable
of testing
error—the kind
envisioned
Sixth
Amendment has occurred.
if the
loses
But
its character
a con-
process
adversaries,
frontation between
the constitutional
violat-
guarantee
.
ed. ..
counsel entirely
subject
prosecution’s
fails to
case to mean-
[I]f
ingful adversarial testing, then there
been denial
Sixth
has
Amendment
rights that makes the adversary
itself
process
presumptively prejudi-
is [s/c]
(United
cial.”
States v.
Cronic
U.S.
656-659
(1984)
L.Ed.2d
657, 666-668,
I therefore concur in the judgment granting the petition writ habeas corpus vacating the judgment:
Lucas, J., Panelli, J., concurred.
246
Appendix A Report The Woods Christi, Texas, 3/21/51, migrant family. He the fifth Corpus Fermin in was was bom to family eight traveled exten- During picking child in a of children. season the Ledesma’s sively throughout required alongside their pick to the south. Fermin and his brothers were years during younger years old) he doesn’t remember parents. (up Fermin stated his to Pascual, Rudy, fruit, getting except picking playing much with oldest and and his brother extensively of a by they They he had sense if misbehaved. and no beaten his father traveled home at this time. family crops Campbell. eight they pick When Fermin moved to California to in was was, first He stay in school for the time. decided to in this area so that Fermin was enrolled however, coupled grade. humiliating painful him put first This and to which was in the They required in and states language problem. to work the fields Fermin with were still hard, “slave,” money got give his father all the and that he felt like a in that he had to work family in except (The apparently in had a second Mexico which beatings. return father little having money by to wear he sent and used his father—he talks to Fermin felt resentful old, kids.) regard used him with the other With clothes to school which embarassed further therefore, began schooling, He up he for failure from the onset his “education.” was set eventually grade, dropped to cut school fifth until he out in the which he continued to do year high street to fulfill his needs. his first school. looked and more to his friends He more work, however, began glue. He also car 14. to sniff had his own at He continued problems juvenile began His he had with interaction with the and where court [s/c] Hall, ultimately truancy spent Boys and “out of He at Juvenile Ranch and control.” time during years. CYA for car teenage theft his A part relationship critical with development around his Fermin’s childhood revolves desper- Throughout his father. his he by he father. He admits that childhood felt unloved his ately felt wanted his father’s him. Fermin approval and able communicate with was never and, so, merely expected that he was His fa- if not do he was beaten. to follow orders he did wire, belts, extremely punitive ther was an an axe man cable and Fermin has been hit with handle, cords, extension get or on.” “whatever he could his hands spoke He of one time his father discovered “cutting” when he came from school and home punched get his actions. Fermin was forced to on knees in his father and his front of body. face and all over his At 15 Fermin thrown of his home. out development Another critical interaction psychological element of Fermin’s concerned his brother, eldest, got Ray. Ray, his As Fermin with the second father’s favorite son. was his older, father, Ray he misbe- delegated up as well as his became Fermin if his father beat Ray All father’s Fermin approval haved. of his affection and were therefore showered rejected. day, estranged. fell resentful and To this the two brothers are his also phenomena Violence was a common childhood. Fermin observed Fermin’s [sic] re- frequent I him to getting Beatings hit his severe. When asked mother father. were only any, bad memory “I lay happy responded, me a from his don’t childhood beatings at home beatings got marks I from ones—all the and the them.” addition being banged” neighborhood. “rat among peers He told of met with violence in the also (Rat fights. teenager from bearing three stab wounds as well as the scars of several times as severely beat eight guys jump person and ten on one banging phenomena is a where [s/c] them.) and batter life, emotional lack of nurturance and in his there was a Coupled the violence got enough love or attention. family eight, as he never Being he felt if fifth fulfillment. *68 fact, has, family. by desig- been Fermin states that he never felt wanted or needed his He in sheep.” the “black nated as family although if him sure that Fermin stated that he never knew his loved he was he therefore, “family” response, His into himself for a loved them. was to withdraw and look “wrong During repeated Fermin that he felt with the our interview often streets crowd.” frustration, learned, respond to his subsequently, father didn’t like He to own that his him. by developing protect street attitude to himself—vio- sense of failure and lack of love a hard rage, pressure of to and became in- response (reaction) a learned as well as a sense lence was that, family part talking is grained (My impression as a of him. somewhat with members fact, only being given plight to be “token” concern to Fermin’s and that he is considered is writing sheep. regularly response. to them with little He has also the black Fermin has been money days My get impression he requested to to him. is that was often which took several functions, family etc.) left out brothers, Pascual, his Fermin close at one time to the eldest. When Pascual went to Of felt Nam, lonely During rejected again. year Fermin was 17 he felt and once this same Viet and Ranch, got already he busted with another car theft offense. Since had at the his Fermin been join Army go Army him that he had to to Y.A. Fermin chose the P.O. told either ultimately negative experience for him which was a traumatic which further reinforced the subjected Army began go and abuse he to all of his life. While in he violence had been to completing camp after and return although AWOL boot continued to home he did not live parents, streets or with his rather on the with his brothers. Fermin states that the reason that Army respect he didn’t like the of the lack of was because well as the treatment received sergeants. He that it indicated was difficult for him to have to stand attention and them insult him as to listen to as well make remarks about his [r/c] mother. Because of fre- quent responses gave interviews, and during remarks which Fermin appears these it as if he is strict, unflexible, cope to authority figures unable with hard because of the abuse which he subjected throughout to (especially had been them his life regard father). with his to His response to situations in dealing authoritative, which he finds himself figures punitive “fight” back with all attempt to of his in an will to save his own digni- sense of self worth and ty- however, Army, of the terms problem resolution to simply bear was the situa- coupled tion which with the fact that he initially had pressured join. been Fermin When was managed AWOL he stay long periods at home for time before he got caught brought back to Fort Ord. A during traumatic event occurred for Fermin this family time when the was informed missing They that Pascual was Viet action in Nam. subsequently family informed the that he (although proved was dead to be incor- this later rect) and Fermin deeply upset. was He said that was for him and the this the final “straw” Army however, and that he Ray had go Unfortunately, no desire to back there. his brother called the MP’s on informing Fermin to Fort them returned of his whereabouts he was Ray’s going any- Ord. rationale for his actions was that he concerned about Fermin was where with his life. time, days During prisoners Fermin was went on sentenced to 96 in the stockade. food, break in the During strike in order a recreation protest etc. prison conditions of you Sergeant prison yard, yelled, Thermin” began yelling. all “Fuck prisoners Fermin and, days for 8 or 14 unfortunately, into the “hole” behind him. He thrown an MP bedding, heat or (he very with no remember). steel room doesn’t “Hole” was small case, In Fermin’s how- Usually through opening the door. pushed windows. ever, the food is fed, day, time with three MP’s came each clubs three times a he was which was when body. he was bruised all over his This severely face was him. swollen battered His Obviously stay rage, the hole. his sense length of his entire continued for the treatment by'this negative, powerless incidence as well as his greatly increased violence was hatred and Army. (The psychological effects of this regard other incident should to the also feelings with after he depth.) revealed to me that was released from the more in Fermin stock- explained waiting MP ade, got shotgun and was for the who did this him got after he went and waiting approach in his car for man to spoke planned as he Fermin off of work. *69 however, time, coping a mechanism of him. At this Fermin still had rationale inside shoot possible as as conse- him him to realize that he not do this well which enabled could He, therefore, home, harming seeing in- quences of or even the MP his actions. drove volved. sister, During period, a his third AWOL time Fermin met and married friend of his Adeli- May they ta He fell in love with her and were married March 1970. In of that Chiodo. on year got suspicion fought car He it. While courts he busted for of theft. the case and lost court, Tracy determining were whether or not he was “fit” adult he transferred to for was Penitentiary him spent parole three months. He decided to send where he was 19. The board subsequently fighting Cruz. to he finished his time fires at Ben Lomond in Santa CYA and Army. During discharged he from this time was has he been on the He be noted that Fermin continued to work when has streets. It should began steady, got YA life for reliable and when he out of he to build a himself was a worker year they together as a For next and a half that were Fermin remembers and his wife. states, got pregnant girls. “I life. His and had twin Fermin was work- happy time in his wife things good ing got I furnished with nice ... we had credit.” and we a house which cheating up she on him. Fer- split Fermin in 1972 after Fermin found out was and Adelita intensely. turning in his as he her He felt point as for the worst life loved min this a describes occurred, life-style dramatically. changed could no lon- rejected angry. his He and After states, a job spend “partying.” of time Fermin “I did ger to all his hold a and wanted down my crystal [i.e., really He be- I care about life.” also grass, especially didn't lot and PCP]. of in people of involved criminal activities. gan get with a crowd who were to involved He with girlfriend his a named Lettie. was involved first after wife was woman His serious did, feelings for He years her of his his wife. five but never married because her for four or however, May rejected again they up last he felt once someone her broke love and when crazy” relationship “getting too because she felt he was had Lettie ended their that he loved. marijuana I drug consumptions When of KJ combination of and PCP]. of his
because [a true, things he in he He stated that couldn’t remember asked Fermin if this was fact affirmed. weight, eating, losing a etc. he did and that he was not lot of Lettie, very got bad. breakup subsequently that life for him After Fermin’s he states heavy ...” job subsequently began drug just care. He lost his and a involvement. “I didn’t Utah, day August “I he taking eight May from when I While was KJ’s to left Utah.” Jose, again on also consumed LSD several times. When Fermin San he once went returned to binge days high. prior spent a KJ and four to his in a constant arrest were very drug develop- important regards psychological Fermin’s use is a variable with to his began glue very age rapidly ment and current sniffing young pro- mental state. He at a and gressed marijuana, LSD past and KJ. He using states that he has been KJ for the seven years. trips” He remembers several “bad got high. During which he had bad when he these very monsters, trips paranoid he would become and would have He hallucinations of etc. spoke being high of often so he every got couldn’t walk. He also stated that almost time he high driving high he had hallucinations. Once incident occurred when he KJ was home body beginning evaporate thought that his disappear he and that he and would soon KJ, terrifying history him. In altogether. using It was addition Fermin has a also more LSD than he can has taken even LSD. He states that he remember and he would take (It type neurological testing recommended that some at a is done or four hits time. three damage drug abuse.) to him his done because of Fermin the extent on Fermin to determine says things He that he often can’t remember out case.” himself as a “bum describes now (For example, writing be in the reading writing. he’ll middle sometimes has trouble how.) although used to know he forget spell it word and how to only way is the to resolve his violence essence, learned that man has In Fermin is a who subjected and has been to ex- life nurturance his problems. had apparently has never He his gave fact love trust he in every incident that abuse. treme unusual violent in him al- little interest life, family to have His seems rejected them. someone his he was by his fa- or affection approval Lack of making to them. though attempts he reach out and a loner loser himself image. describes seriously damaged his self He ther has also fact, this, speaks Throughout his life often has no seems to be true. who friends and were, responded, “I feeling thought problems alone. I asked Fermín what he When just today.” worry I don’t about future ... live for history, tragic my I of a sense of Throughout his life aware interviews with Fermín of *70 envi- oppressive violent rage building up throughout in him his life because of the which was He seemed like particular his situations and occurrences. ronment which he lived in and Intuitively, man I feel Fermín is a with a lot getting up tight. too as if clock which wound as, attributes; daughters, of his positive such his love potential. I’ve identified some also has, however, his adopted pain. to cover etc. He hardened attitude key summary, into: important which we could there are several elements 1. of. Battered child—effects (a separated bonding psychologist 2. could assess from Lack love and this—he important bonding days operation mother for four at birth because of a mouth so that place. never took 3. Violent role models. spent psychologically. 4. Time and how in the “hole” he was beaten—effects of up rejection 5. Break of his wife others he loved. KJ—LSD, Drugs—effects 6. etc.