*1 22136. Dec. Crim. S004384. No. 1990.] [No. PEOPLE, and Respondent, Plaintiff
THE GONZALEZ, and Appellant. Defendant JESSE EDWARD 24041. Dec. S004384.Crim. No. 1990.] [No. on Habeas Corpus. GONZALEZ EDWARD
In re JESSE Dec. S012508. 1990.] [No. Petitioner, PEOPLE,
THE COUNTY, OF LOS ANGELES THE SUPERIOR COURT Respondent; Party in Interest. Real
JESSE EDWARD GONZALEZ *18 Counsel Chier, Reich, Perry C.
Richard S. Chaleff L. English, & Gerald Chaleff and Gigi Gordon for Party Defendant and and Real Appellant Interest. Millman, Parnes, Weinheimer, G. Michael Steven W. Gail Ephraim Margolin and Nicholas C. Arguimbau as Amici Curiae on behalf of Petitioner, Defendant and Appellant Party and Real in Interest. General, John K. Van de Kamp, Attorney Steve White B. and Richard General, Jr., Iglehart, Chief Attorneys Assistant T. Fogel, Edward General, Frierson, Turchin, Attorney Assistant Susan Lee Marc E. Ellen Kehr, R. Gorey, Birnbaum John Robert F. Wylie, Katz and Susanne C. General, Reiner, Attorneys Deputy Attorney, Ira Harry District B. Sondheim, Horikawa, Size, Patricia H. Abram Weisbrot G. George and Hahn, Deputy Attorneys, District K. City Attorney, James F. Linda Jones, Lefkowitz and Donna Weisz City Attorneys, Witt W. Deputy De Clinton, Counsel, County Owens, Counsel, and M. James Deputy County for Plaintiff and and Petitioner Respondent
Kent S. L. Scheidegger and Charles Hobson as Amici Curiae on behalf Plaintiff and Respondent and Petitioner.
Opinion EAGLESON, jury J. convicted defendant Jesse Edward Gonzalez of Code, the first degree murder Sheriff Deputy (Pen. Jack Williams §§ officer, 189)1and assault a upon Sheriff peace Deputy Robert Esquivel, likely means produce to great bodily injury (§ (b), former subd. now offenses, subd. (c)). With respect jury both found that defendant had a personally used firearm. (§ 12022.5.) Under the 1978 death stat- penalty ute, found, murder, also aas of the special circumstance statutory
1All further references are to the Penal Code unless otherwise indicated. performance officer intentionally engaged killed a peace defendant 190.2, (a)(7).) subd. duty. (§ a deadlocked, the court declared and jury became
A separate judge The trial death verdict. jury returned a A second penalty mistrial. 190.4, defendant and sentenced (e)) subd. modify (§ the verdict declined for the six-year term prison imposed murder. The court death for the two-year enhance- assault, years four plus middle term of representing stayed. sentence noncapital of the use of firearm. Execution ment for is automatic. appeal This for petition the People corpus, also for habeas
Defendant petitions These discovery order. postjudgment the trial court’s mandate overturn guilt We affirm the shall appeal. have been consolidated with matters order habeas deny corpus, penalty judgments, petitions *19 People. as requested writ mandate issuance of a peremptory I. Guilt Trial
A. Prosecution’s case-in-chief. 29, 1979, County sheriffs May deputy Los p.m. Angeles
Around 7:30 Abbey forces drove to city police and narcotics officers from two surrounding facts (The a search warrant. Street in La Puente to execute officers, included The who validity below.) of the warrant are discussed They ethnic backgrounds. and were of various Deputies Esquivel, Williams T-shirts) and jackets, in tank and plain (Levi’s, tops, were dressed clothes Camaro, LTD, a a Ford and Ford using (a unmarked vehicles were Granada). house, in the car to the rear of the the second stopped
One drove quickly in Four armed with driveway, deputies, remained front. side third Za- door. Williams and Deputy themselves at the front pistols, positioned identity and bokrtsky forcefully each knocked and announced the group’s purpose. hasty suspected
The officers then heard movements inside the house destroyed Williams told to “take being Esquivel evidence was or concealed. tries, four kicked the door and the Esquivel open, the front door out.” After Forty-five elapsed rushed in. to one minute had between officers seconds entry. first knock-notice and the jacket, the first to badge Army fatigue his to his was
Esquivel, clipped Williams, hand, in his was behind. badge enter. an case close holding open threshold, he defend- As momentum him across the saw Esquivel’s brought wall, him. turned aside Esquivel ant braced a at against pointing shotgun chest, fired. blast wounding and defendant struck Williams him fatally.
Defendant fled hallway, carrying down a his shotgun against shoulder “port arms” position. Esquivel pursued. Seeing or hearing Esquivel him, behind defendant turned the shotgun’s barrel “backwards and down- times, wards” direction. Esquivel’s Esquivel fired revolver several defendant, wounded and arrested him. half-brother, Martinez, cousin or
Defendant’s Steven found hiding the bathtub custody. six-year-old and was also taken into A girl and defend- ant’s two-month-old son were discovered in a back bedroom. There were needles, narcotics (lactose, syringes, paraphernalia carbon-stained spoon, cut in a empty balloons characteristic .22- manner) throughout the house. A caliber automatic was also pistol retrieved from the residence. con- No trolled substances were found. ambulance,
As defendant was taken gurney several officers say observed him raise his fist left “Viva Puente.” This considered a defiant salute to the local street known as “Puente.” gang Deputy Araujo also heard defendant hurl the “puto,” “fag,” nearby epithet meaning officers.
Two deputies interviewed defendant in the hospital day. the next Defend- *20 ant was alert and He claimed the congenial. shooting was a “freak accident” identity. caused mistaken He thought had the house under wаs attack “Bassetts,” a a street from rival gang neighborhood. At one point, lawn, defendant he explained was outside ran watering but inside when he saw “the cops” Asked to what he he “the coming. repeat did when saw insisted, say defendant “I cops,” didn’t that. You must be confused.” gave Defendant then following the officers the He inside account: was talking to Martinez when he heard full tires and several cars squealing saw shouted, “Stevie, Trucha, trucha,” of men surround the house. He Bassett. street language “beware” or “watch out.” He retrieved his shotgun, it, himself loaded and stationed the front door. He heard opposite pounding and shouts. indistinct Two mustachioed men—one one “Mexican” and White—burst in with He guns. knew Bassetts sometimes with attacked “white He dudes.” fired and ran. Acker, inmate,
William a jail fellow testified that defendant approached first, him with At legal questions. Acker was reluctant get to involved. However, facts, defendant eventually explained illustrating his narrative by drawing a ofmap the scene. Defendant confided he had been “tipped” imminent. suspected and a narcotics was a police “bag raid He wanted to and cop” protect his because there heroin. When the officers “pad” was “Juda,” Martinez, “the meaning ran inside and told defendant approached, dump and to remove the children Martinez was supposed cops, police.” “anyone and shotgun, had a narcotics, Defendant help. and get gun then theirselves,” it.” officers “announced The getting in that door was coming his shot hit in so fast that burst deputies answer. but defendant did not door, thought Defendant a “white dude.” through man the second shot, he but escape, him time giving his first officers would retreat after that Martinez did not way.” He “pissed” “it found out didn’t work help. defendant, way. I “No “they you,” replied, but defendant got
Acker told claimed, claim, he or had planned Defendant said got aces.” were, and Bassetts Acker asked who the officers Bassetts. thought the were his currently war with gang were street explained they defendant would be and peace said the Bassetts wanted neighborhood. Defendant area. Defendant also had “chaos” in the testify there been willing the officers entered unannounced get neighbors say he could thought first. shot on his sentence testimony, jail awaiting
In his Acker revealed he was cross-examination, Acker said he On “felony own conviction for murder.” his information. He with voluntarily had the authorities approached and he gangs, hoped claimed he because he hated target prison facility. to an out-of-state testimony gain would him transfer protective no no other consider- promises expected Acker insisted he had received role his own case informing ation. He admitted about his wife’s incidents, but he denied he was an established jailhouse police about two informant.
B. Defense. Noble, inmate, him to read James another testified defendant asked jail case, read. Their in defendant’s since defendant cannot police reports *21 According to conversations have been overheard from Acker’s cell. could Noble, reading Acker defendant with an offer of assistance. approached with Noble Defendant to few He never discussed case details spoke inmates. and never told Noble he knew the raiders were police. Garcia, been
A that the Bassett had shoot- neighbor, gang Nectli testified from recently. Steven who lived three miles ing Rodriguez, area up times, Street, once had his home four Abbey testified the Bassetts attacked were that Bassett “warriors” both breaking Rodriguez the windows. said he Rodriguez agreed “Mexican and in from 14 24. ranged age white” at them. just looking could tell whether “kids” were members gang defendant, Martinez, was the focus There was evidence that no defendant they might Several testified knew of reason drug raid. deputies informant, said, have A “tipped.” they been warrant would seldom be advised of the time a raid was occur. in Mace testified that the ambulance after the defend-
Deputy shooting, said, man,” “Sorry, ant and asserted he thought the raiders were Bassetts. Mace then told defendant his wounds “looked bad and [de- not make it.” he might Defendant knew he was to die replied going fendant] or lose his arms. variations,
Defendant testified his own behalf. With minor he recount- ed given the version events he had in the police hospital. He admitted law, he asked but Acker about “no knock” he denied Acker the telling details of his case. He also denied he saw “the telling police cops” coming. house,
Defendant Abbey said he had been at the Street staying which was residence, only two weeks before the parents’ shooting. Martinez also lived there. Martinez heroin had used but as far as defend- past, ant premises knew the free drug May were 1979. leader,
Defendant acknowledged he was a veteran but said he gang had not been involved He since about 1970. knew the Bassetts from the 1960’s 29, 1979, they and understood had May become more violent. As of he had not heard of the shooting incidents related Garcia and Even Rodriguez. however, incidents, if there had been no recent always alert. If any house, group thought unknоwn drove to his his first up would be Bassetts. Martinez had clashed with the past, Bassetts and defendant Martinez, “guessed” that his advanced despite age (28), was involved in warfare. gang 29, 1979, May birthday,
Defendant testified that on his 31st he returned work, showered, lawn, from watered the and went back inside. When the police cars defendant approached, thought riding a “Chicano” was “shot- gun” front of the In this (the right passenger seat) gangs, one cars. Martinez, where person giving orders sat. Defendant shouted to “Tru- cha, announcement, Bassett’s here.” He saw no but badges, heard shouts no clearly in; and never A observed the officers. “Mexican” burst then a White man, hidden, mostly still doorway. aimed Defendant pistol through *22 fired but never man he really saw the hit. officer, eyes
When defendant he he realized had shot an closed his asked, wounded, “Why? Why? Why? Why? Why?” lay As he the police cursed and him. he as why “puto” kicked This is said he was carried from barrio,” means, for “hurray said, mi which rifa “Que He also the house. neighborhood.” However, 18. than usually younger were knew warriors gang
Defendant had Occasionally Bassetts older men. by participation he had heard of T-shirts, clothing their “Townecraft” than distinct “helpers.” White Other now used vehicles but drove “low-rider” They formerly not uniform. the Bassetts were Though parents. their cars or vehicles owned borrowed May 29 defend- if challenged, would scatter “chickens” “broads” who “balls.” “finally” attacking with they thought ant were C. Rebuttal. characteris- testified about the with area gangs
A sheriff’s officer familiar (oversized (Mexican), appearance 20), background ethnic ages (16 tic (an T-shirts; back), language short hair combed heavy, sleeved khaki pants; “low-rider (beat-up type” vehicles “Calo”), mixture called English-Spanish (rifles), General Motors cars), weapons trucks and full-sized pickup attacking Bassett warriors. shootings) tactics or hit-and-run (drive-by testimony about the circumstances objection, heard live Over days six before the Lira testified that to the search warrant. leading Deputy raid, buy” of heroin from make a “controlled he observed an informant The Abbey Street. yard in the (a Martinez) “Indio” name used in evidence. affidavit also admitted warrant and its were supporting Penalty II. Retrial
A. Prosecution’s case-in-chief. variations, evidence of the its represented
With minor prosecution warrant, raid, Lira tes- shooting. and the Officer circumstances of the ambulance, say, him Lira heard tified that as defendant was in the placed meant, Puente, gang, live the Puente “long “Rifa Lira believed this putos.” standing were seemed directed at who queers.” epithet police personnel nearby. jailhouse ad-
Acker restated his version of defendant’s essentially prior finally Acker legal help; Acker defendant him pestered missions. said exten- Their conversations happened. and asked defendant what acquiesced Acker initiated the discussions. period. ded over two-week sometimes “nares,” “sweating” who were Defendant hated the sheriff’s explained and show “bag cop” Defendant wanted to (harassing) the neighborhood. May On which was defendant’s he could narcotics business. protect his *23 birthday, defendant a raid. anticipated (his The “women” and Martinez’s wives) were sent signal. outside watch and Defendant “on the point” was ready). and (alert again
Acker his for explained giving motives evidence. He said that after sentenced, Ahn, he he approached authorities Detective through investigated who had his own case. Acker hoped to an out-of-state arrange transfer because of with his conflict He also prison gangs. wanted restore a “moral balance” for his own crimes. Acker confirmed he had infor- given in mation his own jailhouse case and two meeting incidents before defend- case,” ant. “Since this he acknowledged, he had testified in two other cases given and had in six information or seven. He denied he was an established police agent.
Acker revealed that a tattoo bearing recently word “Paramount” had been removed from his surgically back. He denied the tattoo had indicated his own gang membership. got He said the tattoo in of prison as form Paramount, protection against By gangs. calling city, attention his home the tattoo convey was intended to that he was not alone prison. Acker denied of a knowing gang named “Paramount.” time,
For the first Acker admitted he had been of promised “removal tattoos and other of perhaps types plastic surgery” of protection light his overall with the cooperation authorities. Acker denied requesting change identity solely in return for testimony against defendant. officers,
Deputy Araujo, gang who expert raiding knew testified they did not resemble Bassett warriors. The (mid-30’s officers were too old older), mostly Anglo, style. dressed in gang Araujo had never heard of gangs inside an going enemy’s Abbey house. He believed Street neighborhood “very quiet” May 1979.
The parties stipulated that defendant previously had been convicted misdemeanors, two forcible assault (former 245; now subd. (a)(1)) § § in 1966 battery (§ 242) 1972.
B. Defense. testify.
Defendant did not He his version of presented shooting Overlease, through Deputy one the officers who interviewed him in the hospital. Ovеrlease included defendant’s slip tongue seeing about “the cops” Testimony coming. about defendant’s remorseful during statement his ambulance ride jury. was read *24 day a normal he worked suggesting records time introduced
Defendant Jesus, not home he was sister, testified De Patricia May Defendant’s on 29. kits” in “hype Jesus never saw birthday. De which day, during inject insulin. syringes and needles house; diabetic father used her mother, use her husband’s Gonzalez, confirmed defendant’s Matilda the needles diabetes, recognize she did but she conceded syringes by the prosecution. introduced and paraphernalia De- gang. of the Bassett was a member that he Martin Ybarra testified May 1979. denial, jail Acker before he had met said Acker’s Ybarra spite “belonged Ybarra he told rivalry. Acker the Bassett-Puente They discussed that name. gang by of a to Paramount.” Ybarra knew an impor- of Puente and as “the” leader heard of defendant Ybarra had recently had that Puente warriors He recounted enemy tant of the Bassetts. enough, boys.” enemy important If an at Bassett “home shot two his house. said, doors and enter break down Ybarra Bassett warriors would Rebuttal. C. older “guy” was considered Araujo testified defendant
Deputy Abbey Street Araujo in the said past. with involvement possible gang had activity gang the Puente gang was not the focus of neighborhood single no leader. Appeal
III. Issues A. issues. Guilt Validity
1. warrant. search—the narcot first the fruits of the warrant Defendant claims ics have been because suppressed paraphernalia pistol—should Abbey to search the Street warrant did not disclose cause probable affidavit house. The contention lacks merit. May an untested Lira that on
The affidavit Officer disclosed could heroin purchase officer that the informant informant told narcotics “Indio,” “Steve,” Abbey Street. at 16123 as who resided from also known male, five feet twenty-seven, (Latin age described “Indio” The informant inches, thirty to one hundred five feet nine one hundred and seven to hair, dealing large quanti- “Indio” was sixty goatee) short and said pounds, official records learned from police ties of heroin from the address. Jr., Martinez, Abbey Street and registered that a car was to Steven address, “Indio,” (2) that Steven Martinez of that who was also known as day, had numerous arrests. The same Lira watched the informant make a *25 buy” “controlled one balloon of backyard Abbey heroin of the Street address.2 The seller fit “Indio’s” and the informant description, Lira, information, confirmed he was “Indio.” On the basis of this a trained officer, narcotics expressed the that heroin stored opinion on the prem- 16123 Abbey ises at Street. arrest,
Defendant asserts that if justified even the affidavit “Indio’s” it did a search of the residence. support Apart from the of an claims untested informant, suggests, defendant the circumstances recited in the affidavit did not indicate contraband was stored disagree. inside house. We
Mere
of a
evidence
suspect’s guilt
no cause to search his resi
provides
67, 84,
dence.
v.
(See People
605,
Cook
22
fn.
(1978) Cal.3d
6
Cal.Rptr.
[148
However,
formant] “Indio” the 251, pre-Proposition (see 3Because is a People (1983) this 8 v. case Smith 34 262 Cal.3d 692, Cal.Rptr. 149]), apply P.2d we rule [193 the California that an noncitizen untested independently (see informant’s claims must be (1983) corroborated Cooks 224, Cal.App.3d Cal.Rptr. 211]; Aguilar (1964) cf. v. Texas 378 U.S. [190 723, 728-729, 1509]), “totality L.Ed.2d 84 S.Ct. even if that standard differs from the narcotics evidence. to exclude
2. Failure war to the leading the circumstances that both argues Defendant have should also in the search found and pistol the paraphernalia rant and warrant and claims the He and prejudicial. as irrelevant been excluded him, pertinent were thus connected directly never items were seized who a “bad person” he was suggesting only purpose for the improper Code, 352; People (See Evid. traffickers. with narcotics § associated 569]; 647 P.2d 31 Cal.3d 906-907 Cardenas Code, (a).)4 subd. cf. Evid. § *26 search, was affidavit, the facts supporting detailed
The which warrant case-in- prosecution’s of the objection at the conclusion received without whether the affidavit on its own motion inquired chief. The court then col- following The than probative. more any prejudicial contained material I there don’t think prosecutor]: ensued: “Mr. Bowers loquy [the name is not at all. His in the search warrant Mr. mention about [Gonzalez] cor- Martinez; is that Stevie entirely revolving and it’s around mentioned Bencangey All The Court: Yes. Mr. rect? counsel]: []f] [defense [If] then, also, Mr. want it in you would I assume that right, purpose So [if] Bencangey: my at I think it harms client Yes. don’t Bencangey? Mr. [1f] (see currently Illinois Gates required the federal Constitution test under circumstances” 546-549, 527, 213, 2317]). (1983) 103 S.Ct. 462 U.S. 236-239 L.Ed.2d [76 implies the point, the warrant affidavit Though not raise the we note that defendant does by description given as the informant police independently did confirm either “Indio’s” buy.” How- representation the seller in the “controlled the informant’s that “Indio” was ever, reliability re- only “in essential the untested informant’s the authorities need confirm (E.g., they every by independent probable cause means. spects”; need not element of establish Cooks, 365, 586, 202]; supra, (1967) Cal.Rptr. 432 P.2d People v. Lara 374-375 Cal.2d po- buy” place property on which Cal.App.3d p. 293.) took That “controlled confirmation of the informant’s independently linked to “Indio” sufficient lice had was reliability. motion, additionally was claimed the affidavit suppression In his trial court defendant “hearsay” Markey’s that the (1) information deficient because affiant Lira relied on Officer Markey’s description “buy,” pre- of the (2) informant was searched before and after the (3) “buy” say cavity inspected, and Lira expressly mouth search did not the informant’s observations, However, reported actually see a sale a fellow officer’s did not transaction. (E.g., hearsay, competent presumptively in a warrant affidavit. 684, 690, reliable the affiant as are 102, 741]; Peo- (1965) 380 L.Ed.2d 85 S.Ct. States v. Ventresca U.S. United 393, 1]; Superior Cal.Rptr. Price v. Court 528 P.2d ple Hill 12 Cal.3d 761 [117 Markey’s 721].) report adequately es- 463 P.2d (1970) 1 Cal.3d 840 [83 “buy.” “thorough” occurred before after the tablished that “full” and control searches logical “Indio” had sold narcot- (See ante.) ample for the inference that fn. There was basis Abbey immediately outside 16123 Street. ics the informant it, argues his eat too. Here he that war apparently 4Defendant to have cake and wants unduly testimony prejudicial. Else excluded as rant affidavit and related should have been however, where, jury permitted to the war have been determine he claims that the should peace- necessary charges peace-officer assault and validity ingredient of the rant’s as a 10., (See part post.) officer murder. A. counsel, all.” With (Italics added.) agreement of both the court admon- truth, ished the jury only the affidavit was admitted not for its but the officers’ explain presence and conduct at the time of the shooting. when, objected Defendant later under Evidence section 352 Code its case, rebuttal Lira prosecution proffered testimony Officer about the buy” leading “controlled to the search warrant. The prosecutor urged the evidence was to rebut pertinent defendant’s of nar- professed ignorance activity cotics Defense counsel premises. responded that the warrant house, evidence showed at most an ambiguous transaction outside the was highly prejudicial. already court that similar evidence responded before the affidavit, and was relevant to rebut defendant’s claim that the apparent had “dreamed
police excuse to raid the The court if up” house. asked the May defense would that the stipulate legal. raid was intend- Apparently warrant, ing preserve objection validity to the of the respond- counsel ed, “No.”
Accordingly, objection the court overruled defendant’s to Lira’s testimo- ny, but again jury warned the to only consider the evidence for its proffered bearing why on the officers raided the briefly house. Lira then described the buy. controlled Defendant never objected below that the of the search were irrele- fruits
vant. Nor did he ask trial court to exclude as prejudicial the fruits more than probative. may he Assuming nonetheless raise the “fruits” issue counsel, as one of ineffective appeal assistance no basis for rever- we find sal in any these related contentions.
First, any in admitting error the warrant affidavit invited. In re to the court’s sponse trial pointed inquiry, defense counsel indicated he in” because it tended to suspicion show “want[ed affidavit] Martinez, narcotics activity was focused on not on defendant. This was a tactic, plausible given defendаnt’s central claim that he had no to reason and expect police, it manifest on the record. Avalos (People (1984) 216, 549, 37 Cal.3d 121]; 689 P.2d cf. Cal.Rptr. People Wicker [207 sham Cal.3d 334-335 650 P.2d Cal.Rptr. 311].) mind, Even if counsel later his changed the court did not abuse its discre tion concluding that brief live testimony buy about the controlled not more useful than prejudicial. event, any
In evidence of narcotics activities on the was admissi- premises Cardenas, ble under the circumstances of this case. Defendant cites supra, excluded must be evidence that narcotics for proposition Cal.3d Cardenas, charges. to directly pertinent it is unless unduly as prejudicial however, is inapposite. 7- of a perpetrator was the the accused whether There the issue was robber, was the theory that Cardenas its robbery. To buttress
Eleven We habit. drug his money to support he needed prove sought prosecution addiction an accused’s impact, because of its prejudicial confirmed that stealing of his motive as evidence may not be admitted remote narcotics 906-907; see generally Cal. 3d drugs. (31 pp. other than something Otherwise, 357].) 233 Cal.App.2d v. Davis (1965) to the face exposure theft robbery with would charged every addict character flaw. of his “loath[some]”
Here, contrast, engaged officer police conceded shot defendant However, mistaken self-defense he claimed a search warrant. executing thereby He from the police. a visit denied reason having expect narcotics intent, Evidence of motive in dispute. knowledge, his placed contrary suggested, residence in and around defendant’s activities This is claim, been a may surprise. particularly raid not have police that the Martinez, the house was in the actual narcotics suspect, considering so Thus, than evidence was more the narcotics shooting. at the time of the absence knowledge, plan, to the issues of “remotely” preparation, relevant deliberation, malice, accident, knowing of mistake or premeditation, Code, 1101, subd. (b).) Evid. (Cf. murder of a officer. peace § harmless. The clearly evidence was Finally, admission of the narcotics *28 controlled-buy it could consider court twice to the that emphasized Moreover, over- only People’s the officers’presence. evidence explain they insisted The raiders strong surviving all case and the defense weak. admittance, forced clearly, themselves awaited and announced knocked suspicions, displayed their entry only when the sounds within aroused evidence through convincing the door. There was they their as came badges or tactics. warriors in gang appearance that the officers did not resemble had probably disproven in that the argument prosecution Counsel conceded More- belief a attack. any gang basis for defendant’s asserted reasonable identity, over, defiance even after knew the officers’ defendant showed It does not he had “the cops” approach. he later blurted out that seen v. the outcome. reasonably (People that error affected appear probable 818, 243].) 46 P.2d Watson Cal.2d 836 (1956) [299 testimony. 3. Distrust informant’s on its by failing trial court erred to instruct argues
Defendant be viewed jailhouse informant should testimony own that the motion 1210 cases,
with distrust. We have rejected the contention in other concluding jailhouse that informants have no inherent motive to lie and that the stan dard credibility jury’s instructions on adequately guide assessment of a 527, jailmate’s testimony. v. (People (1989) Morales 48 Cal.3d 553 [257 64, 86, 118-119 Cal.Rptr. 770 P.2d 45 244]; People (1988) v. Cal.3d Thompson 245, 543, 753 37]; People Hovey P.2d v. 44 565- Cal.Rptr. (1988) Cal.3d [246 121, Cal.Rptr. 776]; 749 P.2d see v. Alcala People Cal.3d (1984) [244 604, 623-624 Cal.Rptr. P.2d We reach a similar 1126].) conclusion here. jurors
The knew Acker was a convicted murderer with motive to They cooperate. they received standard instructions that should consider a interest, distrusted, witness’s bias that a witness part false is be testimony single carefully uncorroborated of a witness should be evalu- ated, and that a oral defendant’s admissions should be viewed with caution. Discrepancies informant testimony, possible Acker’s and his motives for giving testimony favorable were some prosecution, explored length in argument. cross-examination and give court’s failure to a further “jailhouse informant” instruction sua sponte not reversible error.5
An assertion that counsel was ineffective for
failing
caution
request
above,
ary instruction
also
must
fail. For the reasons expressed
the absence
of the instruction does not undermine confidence in the trial outcome.
(Strickland Washington
674, 698,
466 U.S.
(1984)
L.Ed.2d
2052];
S.Ct.
Fosselman
33 Cal.3d
584 [189
1211 that previ- instructions malice elaborate jury upon subsequent request ously provided. had been read tempo- record to the objected his nor counsel
Neither defendant day, Tues- on the next court returned Judge Cianchetti rary substitution. 2, completed. before deliberations were day, September another to substitute improper that it was first asserts Defendant However, affirmative consent. defendant’s obtaining without first judge trial is trial court where the of the judge that another section provides of the trial” the event finish the may with and “proceed proceeding illness, does death, The section inability to proceed. or judge’s trial original The cases cited counsel. consent of the defendant not require the 465, 473; People 28 Cal. (1865) v. Henderson (e.g., People defendant 158, 582, A.L.R.3d 590-591 (1970) Cal.App.3d Stuller they do only objection; purport consent waives 712]) hold consent. require due-process right (U.S. violated his
Defendant claims the substitution I, 7, Const., Const., V, to a who was XIV; 15) judge Cal. art. Amends. §§ consent, he urges, Absent his proceedings. familiar with expressly Const., Ill, 2, 3, & cl. art. jury-trial right (U.S. denied his was also § Const., I, VI, judge the same XIV; 16) Cal. art. Amends. § trial. throughout (See, e.g., for these assertions. abstract provide support
Some authorities 500, 5; & fn. Freeman (5th 1965) v. Beto Cir. 354 F.2d Randel 732, 759; 1978) State v. Davis 1915) (Mo. United Cir. 227 Fed. (2d States Crim.2d 878; 2 Federal Practice & Procedure: Wright, 564 S.W.2d Crim.Proc., U.S.C.) rule 402-403; 25(a), cf. Fed. Rules pp. § trial, However, original during prudent when the becomes unavailable judge manifestly and is often may have no actual effect on fairness substitution reason, courts For this California and federal preferable to a mistrial. both authority. 1053; Fed. Rules (§ substitution long possessed have express Crim.Proc., U.S.C., rule both supra.) circumstances, many modern decisions
As
be
under
might
expected
substitu-
always
when midtrial
reject
required
the notion that reversal
confirm
These cases
occurs
affirmative consent.
tion
without
defendant’s
erroneous, is no
technically
if
even
well-justified change
judges,
substantial
object
prejudice
if the
failed to
and no
basis for reversal
accused
522, 530-
1973)
Cir.
480 F.2d
(2d
United States v. LaSorsa
(E.g.,
resulted.
*30
628,
v.
State
630];
State (1969)
Defendant claims the substitution caused substantial be prejudice cause Judge Miller jury’s clarify mishandled the to in request the malice structions. We disagree. malice, murder,
Judge Cianchetti had the given standard manslaugh- 8.11, 8.20, 8.30, 8.37, 8.40, ter (See instructions. CALJIC Nos. 8.50.) The jury provided copy day’s written of the During instructions. the first deliberations, the Judge clarify asked Miller to legal definition malice. Miller Judge explained that he doubted could improve on standard definition contained the instructions fur- previously read and nished. He urged jurors reread the instructional (CALJIC definition No. 8.11) context preceding re- subsequent instructions garding definitions and degrees murder. The jury foreman replied, you, “Thank your Honor. I think that clarifies it.” Miller, return, Neither nor Judge Judge Cianchetti upon any received issue, further inquiry the malice though Judge Miller had asked the if foreman he had any specific questions on the matter. Defense counsel objected neither Judge Miller’s actions nor offered his clarifying own instructions. urges
Defendant Miller’s refusal Judge give additional malice instructions violated section which requires the court to provide jury any desired information “on any point law arising the case.” As observes, defendant “mandatory” duty statute imposes up clear instructional confusion expressed jury. (See v. 21 People Gavin (1971) Cal.App.3d 418 Cal.Rptr. 518]; Malone People (1959) [98 234, 244 Cal.App.2d 333].) P.2d jury-trial Since see rights we no substantial denial of under either the federal or state Con
stitutions, we personally need confront the California rule accused must ex Const., I, plicitly rights (Cal. 16; waive such on the (1960) record. art. Holmes § 583]; People Cal.2d 442 P.2d v. Maes Cal.App.2d 147 [45 Cal.Rptr. 903].) *31 ad- the jury’s questions resolve However, obviously did Miller Judge in context. instructions homicide malice and reread the them to vising and complete, full Where, here, are themselves instructions original as additional what 1138 to determine under section has discretion the court (See for information. satisfy jury’s request are sufficient explanations 359 P.2d 55 Cal.2d Rigney (1961) preju- error or duty, and no fulfilled that Miller 186].) Judge 98 A.L.R.2d appears. dice testimony.
5. Use falsе of false testi made use knowingly the prosecutor Defendant asserts testify Acker to informant mony by allowing jailhouse the guilt at phase a trans desired merely like and that he untruthfully gangs” “didn’t that he testimony. points in his Defendant return for fer to an out-of-state prison member. gang Acker was a trial that penalty elicited the second evidence identifying admission that Acker’s penalty phase Defendant also stresses argues from his back in Defendant recently prison. had been removed tattoo in identity change promised removal shows Acker was tattoo no he received to Acker’s insistence that testimony, contrary return for his or benefits. definite promises testimony. Ack- no in Acker’s discrepancy discloses material record At defense penalty phase, was never established. gang membership
er’s “Para- had membership Ybarra testified Acker admitted witness his “Para- but denied it. He claimed consistently mount” Acker gang, Thus, assume on only referred to his hometown. we cannot mount” tattoo matter, counte- prosecution Acker about the or that this record that lied lying. nanced Acker lied
Similarly, of the second trial does not show the record testimony. received for promised at the about benefits guilt phase removed, the “Paramount” Although apparently pro- Acker had tattoo no made that this act was done authorities identity, tect his proof testimony return for his defendant’s case. Even if the authorities did assist in the tattoo removal purposes this but a extension of the identity, logical protective Acker’s protecting Moreover, he to receive. always acknowledged hoped transfer had prison this had received benefits for his cooperation inference Acker *32 by and other cases the time trial second does not establish that contrary guilt testimony when phase given.8 false event, In any considering jurors already information had about Acker, member, additional revelations that he be a might gang and might authorities, have protective from the accepted help likely would not have credibility eyes lessened his to any their substantial No degree. basis for reversal appears.
6. Failure to disclose informant.
Defendant that the asserts prosecutor “apparently” failed to dis identity close the of the search warrant informant in with a compliance discovery pretrial order. The record does support not the claim that disclo sure was withheld. In the trial court September granted defendant’s discovery broad request for names and addresses of all “witnesses” it, having knowledge of the crime or as leading events well as all up persons by interviewed attorney district or his agents connection with 25, 1979, the case. The court set a deadline of compliance October advised defense counsel to seek relief for on or before noncompliance that date. 30, 1980, The record later January includes no motion. On compliance counsel court represented open discovery that matters pending were “resolved.” disclosed,
Even if the informant was not defendant waived the issue on appeal by failing timely to seek relief for the prosecutor’s noncompliance. Moreover, an claim ineffective-assistance must fail on this record. We can- not discern whether counsel adequately the informant’s pursued identity, we do know furnished whether informant would have informa- tion that undermines confidence the outcome. Argument
7. regarding burden reasonable doubt. trial,
Though object failed defendant now claims the prosecutor misstated the during law his closing argument by asserting defense has to create reasonable doubt.... The reasonable doubt “[t]he has to be created They defense. have not created reasonable Confusion, doubt, doubt. yes, but reasonable no.”
As defendant suggests, prosecution every must prove element of a charged beyond offense a reasonable doubt. The no accused has burden of reasons, For similar claim impeaching defendant’s that material evidence concealed prosecution guilt phase rejected at the must be this record. 1096; re Winship see In (§ to his defenses. even as persuasion, proof 368, 375, Mullaney 1068]; 90 S.Ct. 358, 364 L.Ed.2d U.S. (1970) [25 Dillon 1881]; S.Ct. L.Ed.2d 421U.S. 684 (1975) Wilbur How- 697].) 668 P.2d 472-474 34 Cal.3d finding be- ever, proof permits submitted has prosecution once the *33 may charge, a the accused every element of reasonable doubt yond a permits that “raises” or evidence obviously with obliged respond be 189.5, subd. (a) charged. (See he is as guilty reasonable doubt that [form- § 33, 42-43 Cal.2d 1105, (1948) v. Cornett 33 erly (a)]; People [198 subd. § 463, 474-475 877]; Hyde (1985) Cal.App.3d v. [212 P.2d People 597, 601-602 23 Cal.App.3d 440]; Loggins (1972) v. People see Cal.Rptr. 528].) Cal.Rptr. [100 re context, The ambiguous. remark was the prosecutor’s
In this only proved had prosecution premedi if it meant that the mark was proper doubt, and that the beyond a reasonable tated murder of a officer peace any basis for had left the record devoid of the defense response weakness if the prose remark was meant to absolve improper reasonable doubt. The on all reasonable doubt obligation cution from its facie to overcome prima admonition, would have and instruction timely objection, elements. Because confusion, intervene below any defendant’s failure to cured prejudicial 1, 27 Cal.3d (1980) a v. Green (People waives direct claim of misconduct. 301, 1, v. 468]; (1982) Cal.App.3d 609 P.2d Scott Cal.Rptr. People [164 306-307 891].) Cal.Rptr. [180 as ineffective assistance point
Nor when persuasive phrased The received jury remark brief and mild. prosecutor’s counsel. was accurate that the bore the burden of proving standard instructions doubt, beyond a presumed defendant reasonable and that was guilty (CALJIC 2.90; until No. see CALJIC Nos. guilty. innocent also proven 2.01, 5.15, 8.71, 8.72, No instruction stated or that defendant 8.80.) implied persuasion. closing bore burden of or Defense counsel proof argument emphasized People’s reread CALJIC No. repeatedly 2.90 as “very, very, very high burden.” The evidence that defendant was guilty Hence, object was failure to to the charged highly counsel’s persuasive. “reasonable does not undermine confidence argument doubt” prosecutor’s in the guilt verdict.
8. to call witness. Argument regarding failure argue claims it was misconduct for the prosecutor
Defendant that, “We We from the didn’t hear from Steve Martinez. didn’t hear six- only We year-old girl. neighbors. only We didn’t hear from the heard—the you heard from.” Defendant concedes present witness [defendant] that the prosecutor may upon comment the defendant’s failure to introduce or logical logical evidence call (People witnesses. Ford 45 Cal.3d 431, 442-449 754 P.2d 76 A.L.R.4th Cal.Rptr. 785]; People However, Szeto (1981) 29 Cal.3d 623 P.2d 213].) child, defendant deems it “ludicrous” suggest six-year-old even if at the time of present shooting, logical was a percipient witness. below, objection (Green, Absent an the assertion of misconduct is waived. 27.) 27 Cal.3d at supra, p. Nor does counsel’s failure to object warrant on theory reversal of ineffective prosecutor’s assistance. brief Despite remark, sense, as a matter of capable deciding, common whether such a young child was logical reliable witness. *34 Far more
The was issue in tangential event. Martinez, damaging was defendant’s conceded failure to call whom Hence, defendant said he warned of a Bassett attack.9 the prosecutor’s unchallenged reference to the absence of a child witness does not undermine confidence in the outcome.
9. Argument regarding narcotics paraphernalia.
In argument, his closing prosecutor referred the narcotics found in paraphernalia Abbey Street urged residence. He the inference that the sale of narcotics from the awas motive for the premises shooting eventually which took Defendant claims this place. reference to narcotics unduly was since he never prejudicial, directly was linked activities illegal on the premises.
However, defendant waived the assertion of misconduct his failure to A of object. claim ineffective assistance must also fail. As previously dis-
cussed, even noif conclusive “nexus” was established between defendant narcotics, the and of presence throughout narcotics evidence the house defendant, permitted inference that its including occupants, had reason Hence, to anticipate police a raid. the prosecutor’s argument constituted prosecutor precluded commenting was not from on defendant’s failure to call Marti simply might nez right against because Martinez have asserted his self-incrimination. A wit ness becomes grounds, “unavailable” on self-incrimination and thus immune from comment reason, only on his absence for that privilege when his actual sworn assertion of has been court, upheld parties unavailability, the trial stipulate to his or the defendant other wise court that the witness cannot be or that in called the circumstances of the “satisfies] (Ford, case an adverse inference should be from the failure to drawn call witness.” [the] “ supra, pp. 447-448.) 45 Cal.3d at . . . When the defendant has . . taken stand . and offered a . . . persons support testimony, defense which he identifies other who could subject subpoena, and those witnesses are question available there should be no but permissible.” (Id., 447.) appropriate p. that comment is at drawn to be inferences the reasonable evidence and on the fair comment therefrom. assault “element” peace-officer as Validity jury warrant 10. murder.
and peace-officer true, i.e., alleged and found Only circumstance special one “engaged officer intentionally peace killed knowingly defendant 190.2, Defendant (a)(7).)10 . . subd. (§ duties.” . . the of. in . performance officer “engaged against peace assault of aggravated was also convicted charge the assault . subd. Both (c).) . (§ of. duties.” performance reversed, because urges, be finding must circumstance special and the engaged-in- denied a determination cases he was wrongly both duty element. other jurisdic rule in California and long-standing invokes the
Defendant liability immune for his resis from criminal one is not although tions that action, he be of an offense cannot convicted tance to an invalid police .. . duties” .. . the “engaged against performance peace officer Curtis lawfully the time. (E.g., Peoрle acting unless officer 33]; 450 P.2d 70 Cal.2d 354-356 *35 349, 844]; Jackson v. 58 357 (1976) Cal.App.3d Cal.Rptr. Henderson [129 183, v. 879]; 188-189 P.2d (1950) Sparks Court 98 Superior Cal.App.2d [219 61, rule from the 63-65.) 90 F.2d The flows (6th 1937) United States Cir. action, he she is duty an has no to take illegal that because officer premise terms, “duties,” if in an in such engaged not for of offense defined purposes Curtis, at 354- is 70 Cal.2d (E.g., supra, pp. officer’s conduct unlawful. Jackson, 355; at 189.) supra, p. court, usually de- although jury,
California hold that not the cases cause, facts supported by legal disputed cides whether action was police considering on the issue of cause must be submitted to bearing legal element, an since the lawfulness of the victim’s conduct engaged-in-duty of 58 corpus (Henderson, supra, forms of the delicti the offense. part 710, 358-359; 716 Jones 8 Cal.App.3d People (1970) Cal.App.3d pp. 625]; Cal.App.3d Muniz Cal.Rptr. People (1970) [84 190.2, (a)(7), provides special as a circumstance that 10Section subdivision “[t]he [murder] who, performance . engaged . . . peace a officer . while in the course victim was of. duties, killed, reasonably intentionally have known defendant knew or should [the] duties;. (Italics . . engaged performance in . .” peace such victim was a officer of. that added.) offense, alia, likely (c), inter of assault means Section subdivision establishes the engaged perfor produce great bodily injury “upon person peace officer . . . in the duties,” knowledge the victim is an officer so . with actual or constructive that mance of.. (Italics added.) engaged. 501]; v. Soto Cal.Rptr. 86-87 Cal.App.2d Curtis, 627]; but see supra, 358-359.) 70 Cal.2d at pp. Defendant claims the trial court erred thus “for of these stating purposes instruc- “ tions” an officer . . . that ... a search serving acting warrant” “law- fully],” and is thus “in engaged duties.”12 performance This instruction, defendant urges, withdrew the of the wrongly issue warrant’s validity the jury’s from consideration. time,
We disagree. Squarely faced with the issue the first we conclude face, if a warrant is its valid on an officer its carrying out command to search lawfully or arrest is engaged duty, and his or attacker may her be basis, convicted and if punished on even the facts disclosed to the magistrate of the warrant support legally were sufficient to establish probable cause.
A contrary construction the engaged-in-duty would requirement defy reason. By overlooking statutory the traditional authority duty of peace warrants, officers to execute facially regular such an would interpretation officer misapply premise “duty” that an has no “illegal” take action. It would ignore preference historic for warrants. And it would under- Legislature’s mine the efforts to deter punish violence upon peace acting officers that capacity. long law has been concerned with the treatment of citizen who
resists or obstructs the assertion of police authority. Since section 148 resist, has made it delay, misdemeanor or obstruct an officer engaged “any duty officer, discharging of his office.” Unjustified violence against citizen, as against other was also under punishable general statutes *36 assault, murder, defining battery, attempted and homicide. hand,
On California, the other most American jurisdictions, including a recognized traditional to resist conduct privilege with police unlawful Curtis, “reasonable” force. v. 70 (People p. 351.) Many Cal.2d at supra, early cases applied this common law to limit the of principle application They section 148. reasoned by that because the offense section 148 described could be only committed an against officer in and engaged “duty,” because action, an officer has no “duty” to take “illegal” the statute did not prohibit Court, an resistance to unlawful arrest. v. (E.g., Jackson Superior supra, 98 12 prosecutor’s CALJIC, At request, gave the the court portion a modified version of of a (4th former 1979), No. 8.81.8 ed. as phrase follows in “The ‘in the [modification brackets]: duties,’ instructions, performance Any of his in these as used means: act or lawful conduct [][] engaged peace security community while the in maintenance of the of the or in the inves wit, tigation prevention crime; serving or of search of a [to warrant].” v. 370; People 59 Cal. Craig (1881) 189; People also at see p. Cal.App.2d 465].) P.2d Supp. Cal.App.2d Perry (1947) 834a, imposes which section However, enacted Legislature In to arrest.13 resistance from forcible citizens to refrain “duty” as as lawful to unlawful well Curtis, 834a applies section we held that supra, at Cal.2d arrests, (70 excessive force. has not used as the officer long so said, the “ana- to eliminate we The statute’s 351-354.) purpose, pp. undertaken conduct self-help against police of violent privilege chronistic” legality about authority, remove disputes and to cause or without sufficient (Id., of section a result 352-353.) As pp. courts. at to the from streets authority is assertion 834a, police to the humane violent resistance laws, legal action lacked even if the officer’s under the criminal punishable authority. her his or or otherwise exceeded cause step protec- toward another Legislature important In took in It created the field. face violent resistance officers who peacе tion against “peace assault battery aggravated new crimes of special (See . . duties.” now . . of. . engaged performance §§ officer[s] Curtis, by requiring In we (b), (c).) supra, subd. subd. held “duties,” incorpo- implicitly the new statutes officer-victim’s engagement “duty” as connec- on the term construed judicial rated limitations prior Hence, held, one not be convicted assault 148. we could tion with section .. . . of. officer . in the battery “against engaged performance peace at Cal.2d (70 was lawful. duties” unless the officer-victim’s performance 355.) p. of the new peace-
We further that our construction limiting concluded sec- affected enactment of intervening officer offenses should not be 834a,” said, at 834a. “was meant most eliminate tion we “[S]ection arrest, not make such law common defense of resistance unlawful Thus, Cur- 354-355.) resistance a substantive crime.” Cal.2d at (70 pp. new crime, reasoned, it is may tis be a illegal while violent resistance to arrest 355-356.)14 against (Id., not a crime officer duties. peace engaged pp. 834a, Act, person has provides: the Uniform “If a knowl Section derived from Arrest care, being knowledge, edge, or should have arrested exercise reasonable *37 officer, any duty person using weapon to peace a is the of such to refrain from force or it resist such arrest.” 14 decided, containing engaged- peace-officer special After circumstances Curtis was similar in-duty (see requirements Legislature’s in the death for were included 1977 statute 190.2, 1977, 316, 9, 1257-1258) pen (c)(1); pp. ch. in the death mer subd. Stats. and 1978 § § alty law, they adopted capital punishment initiative law at issue here. At the same time the 1978 a punishment degree upon the committed the voters also enhanced for second murder 190, peace (§ (b).) “engaged performance in of. . . subd. officer duties." 1220
Curtis contains dictum that an suggesting illegally, officer acts and thus is in . . . “engaged duties” for of a purposes offense or peace-officer enhancement, if a warrant is to execute Cal. attempting (70 is invalid. 2d 354, discussion, 4; However, fn. at see p. post.) also we have found no facts, California decision directly which confronts that issue. On their California cases hold at most of an validity that the officer’s in the decisions bear on lawfully, whether he she was acting engaged and thus was field duty, at the time the officer encountered violent resistance.15
This is an given statutory understandable result language, the sensi- contacts, tive realities police-citizen and the complicated development terms, the law governing resistance. its By engaged-in-duty element focuses on the of duties. this “performance” language, Under it is officer’s inquire pertinent whether that led to judgment violence was officer’s correct or incorrect.
Moreover, unilateral decisions officers in the field are rife with the harassment, dangerous potential overreaching, arbitrary for and viola- (See, Court, tion individual v. rights. Jackson e.g., Superior supra, 98 Cal.App.2d at p. 186.) may Misunderstandings arise the heat of the intentions, faith, motives, moment about the officer’s good authority. A citizen may confronted such circumstances have a colorable basis for belief the unilateral attempt to restrict his police freedom or invade his privacy arbitrary wrongful.
The cases that the imply law thus intends officer to some accept responsibility for his or her own error. Even if the citizen is not privileged reason, resist police misjudgment, they the statutes nonetheless withhold from the officer special protection might from arise the officer’s engagement “duty.” however,
No similar considerations apply, authority when officer’s act is premised on a facially valid warrant. When the submit their police evaluation, suspicions judicial face, obtain a on warrant its regular Court, example, Superior For supra, in Jackson v. Appeal the Court of reversed resist ing-arrest grounds conviction that the officer had failed to obtain a warrant before arrest ing the defendant for a (98 misdemeanor not presence. Cal.App.2d committed in the officer’s Many pp. 186-189.) at pre-Curtis other are to cases similar effect. Curtis itself a con reversed battery upon peace viction of officer because warrantless arrest defendant lacked Soto, probable (70 358; p. People 86-87; cause. Cal.2d supra, Cal.App.2d see v. also Muniz, Jones, supra, Cal.App.3d v. 567-568.) People supra, Cal.App.3d Henderson, involved a (Pp. 716-717.) supra, warrantless field In People detention. Cal.App.3d prevailed the defendant on a claim that the officer he attacked had not com plied with requirements serving (P. knock-and-notice 357.) when a search warrant.
1221 commands,16 in fault no issue of it authorizes only expressly act as his or The officer and . . arises. of . duties” serving “performance officer’s “duty,” and their perform to everything possible done her have colleagues lawfully. to do so limits
Indeed, 836 specifies so Section of arrést provides. California’s law that he simply a but states authority arrest without warrant officer’s to on an 43.55 a Civil Code section to an arrest in obedienсe warrant.”17 “may make liability Code, a officer from peace immunizes 43.5(a)) (formerly Civ. § face, of regardless on its regular of an arrest warrant execution nonnegligent statutory that this consistently explain any deficiency.18Cases underlying orders carry judicial out duty officers immunity peace from the of stems void or they are whether considering to their terms without according 42 (1954) Ins. Co. Cal.2d v. etc. Massachusetts (E.g., erroneous. Vallindras 25 149, County (1972) Marin 907]; Herndon 153-154 P.2d [265 of 933, 221].) Cal.Rptr. 936-937 Cal.App.3d [102 harmoniously courts must construe statutes possible, Whenever Comingore People (E.g., and avoid absurd or anomalous results. 142, 542, v. Daniels 723]; 3d 570 P.2d 20 Cal. 147 Cal. Rptr [141 43 A.L.R.3d 71 459 P.2d (1969) Cal.2d Equal. (1959) Select Base Materials v. Board Cal.2d 677]; en history P.2d in or 672].) Nothing language a intent to from the suggests legislative depart gaged-in-duty requirement duty that official includes the execution statutory principle well-established facially regular warrants. can have perceive any Legisla- Nor we that would policy persuaded an ture or the voters to make officer’s violent special protection against a har- validity resistance on the The law dependent underlying warrant. scru- strong precisely bors a for warrants because “detached preference tiny safeguard against of neutral a more reliable overreach- magistrate” in ing than “the hurried of a enforcement officer judgment ‘engaged law form, Esquivel executing Deputies In standard the warrant Williams stated were “[y]ou premises Abbey are commanded search” the at 16123 Street. may provides pertinent part: peace “A 17Section836 make an obedience officer arrest warrant, warrant, may,. person: . reason to a . without a arrest a 1. Whenever he has [H] person public pres in his able cause to believe that the be arrested has committed a offense person felony although presence. 2. When a ence. arrested has committed a [H] [1]] person 3. Whenever he has has reasonable cause to believe that to be arrested committed felony, felony whether or not a has in fact been committed.” form, liability its provides: In current Civil Code section 43.55 “There shall be no on the of, part against, peace pur cause no of action shall arise officer who makes arrest regular peace making face suant to warrant of arrest on its if the officer in the arrest acts person without malice and in the reasonable belief that the arrested is the one referred the warrant.” *39 1222 crime,’
often
of
. . .”
v.
competitive
ferreting
(United
out
States
enterprise
1,
538, 547,
Chadwick
433
(1977)
U.S.
9
L.Ed.2d
This to the preference for resort warrant is honored process according magistrate's the particular deference to determination of cause. probable Gates, 213, Illinois v. 462 (E.g., supra, U.S. 236 546- L.Ed.2d at pp. [76 so, 547].) magistrate's That being judicial reappraisal of the decision to issue a warrant should not strip serving statutory of special protec- officer tion against Any violent likely resistance. such rule would not deter miscon- duct either or by judicial the police (Cf. officers. United States v. Leon 897, 677, 693-697, (1984) 468 U.S. 3405].) 915-921 L.Ed.2d 104 S.Ct. token, By the same warrant a removes all basis on-the-spot colorable for about disputes authority. the officer’s That a citizen have might reason a suspect underlying warrant’s or that he later in a support, might prevail warrant, attack on judicial has no rational of relationship to the degree his culpability for violent resistance at the moment warrant is served.
Forcible to a society’s resistance warrant “ab- invokes particular of against violence of persons whose official roles as defenders horrence]” safety at public place special them risk. (See People Rodriguez (1986) nature, Cal.3d 113].) By its P.2d violence “ this . . of kind . . . safety tasks; of vital . completion public hinder[s] a particular contempt law and and . . . government; evince[s] strike[s] system at heart of a of ordered . .” liberty . . Such (Ibid.) resistance justifies thus treatment special our statutes accord to those who attack lawfully officers peace “performing (Ibid.) duties.” [their] circumstances, Under these we cannot or the imagine Legislature voters intended to divest peace statutory officer of special protection because simply the warrant the officer when serving attacked is later found cause. lacking probable We decline to extend the reasoning Curtis and its to such a progeny case.
We hold that whenever criminal statute accords treatment to special duties,” violence officer . . against peace in . such “engaged “duties” warrant, include the of a correct service search or facially valid arrest regardless of sufficiency legal the facts shown support contrary warrant. Dictum to the disapproved.19 Curtis is we Accordingly, approval Curtis apparent holding cited with guilty three federal decisions that one is not resisting assaulting engaged “duty” serving executing or officer officer if the States, (70 p. an invalid fn. citing Sparks supra, warrant. Cal.2d v. United 90 F.2d *40 assault on peace-officer the instructions that defendant’s contention reject the “prob- eliminated imрroperly circumstance peace-officer special and the consideration. jury’s from the cause” issue able from also eliminated court’s instruction that the argues Defendant law the warrant was analysis the issue whether jury’s engaged-in-duty jury is a issue of a warrant service We that fully agree proper executed. (Henderson, supra, Cal.App.3d requirement. under the engaged-in-duty conclude, however, properly instant instruction We 357.) at p. jury’s for the consideration. service issue presented house warrant a executing upon an officer a The court instructed that “if, authority and notice of his announcing and after may break enter refusal In whether there was a deciding admittance.” he is refused purpose, advised, announcement, could an the court of admittance after factors.20 consider various and Williams Deputy claims this instruction assumed
Defendant authority dispute. issue purpose, had announced their and colleagues However, It no such advised manifestly assumption. the instruction made . of . . au- entry only “if, announcing lawful after notice that forced added.) admittance. thority (Italics the officers were denied purpose,” and identity did announce their and purpose The issue whether the officers jury. thus left to the 61, 799, 800; 63; 1968) F.Supp. v. Pitot (E.D.Wis. States v. Dentice United States United authority only (D.Ore. 1920) 604.)
to Our one other federal Fed. research discloses (Dovel 949.) Though suggested (7th 1924) Cir. Curtis point. United States 299 Fed. proposition “prevails jurisdictions,” single a state case cited for the that such rule most contrary. (State is Conn. 375 A.2d has to the Cesero 351-352] [officer may underlying deficiency, authority duty facially despite valid but and execute warrant delays unreasonably serving against protection if he or lose unlawful resistance she warrant].) analysis provide appear apply little and the traditional The federal decisions premise, in California since that resistance to an unlawful arrest discredited statute authority addressing is illegal.” (E.g., Sparks, supra.) “is not Defendant cites no warrant abrogat jurisdiction has been privilege sue as such in a where the common law of resistance circumstances, unwilling Legislature are our or the voters ed. Under these uncritically we infer that they peace-officer adopt intended to the federal “warrant” rule when enacted offenses and enhancements. any open permits peace “The outer 20Thecourt instructed as follows: law a officer break anything part or inner warrant, if, or of a or therein to execute the door or window of house house authority purpose, In deter after notice of his he is refused admittance. [U] admittance, mining you may length if of time of announce there was refusal consider the of inside; authority per purpose; hearing footsteps the reasonable belief that ment are sons inside.”
11. knowledge murder: constructive standard. Peace-officer circumstance of that de special peace-officer requires murder intentionally person fendant killed have known was a “knew should 190.2, . . engaged officer in the . peace performance (§ duties.” subd. (a)(7), added.) italics Defendant asserts that a standard mere construc tive-knowledge Eighth violates the and Fourteenth Amendments because it overbroad, vague distinction, it and because fails to draw a rational *41 based on relative between intentional are culpability, murderers who and are not for the eligible death We have con penalty. previously upheld the structive-knowledge standard of the peace-officer circumstance special v. against similar 42 challenge. (People Rodriguez, Cal.3d at supra, pp. 780-783.) We do so here. Penalty
B. issues. 1. Sentencing argument. instructions and (k)
a. Mitigating /sympathy. evidence/factor Defendant objects that the jury from con prevented sidering constitutionally relevant evidence mitigating of his character and background because the factors sentencing included in the 1978 pen death 190.3, alty statute in (§ formerly factors the stan (a)-(k)), applicable CALJIC, 8.84.1, dard instructions (see former No. factors focused (a)-(k)), on his only history criminal and the circumstances of the offense. capital Moreover, asserts, defendant the court instructed the not improperly jury to swayed be . by “mere . . (CALJIC No. sympathy.” 1.00.) This, defendant urges, permitted jury to prosecutor mislead the by children arguing presence that of defendant’s in sister and court was not entitled to sympathetic jury.21 consideration 21 respect argument, With Supreme effect of note at we the outset the United State 316, Boyde (1990) Court’s recent v. comments in U.S. 494 370 L.Ed.2d 110 [108 California observed, S.Ct. prosecutorial commentary As the court there given un 1190]. should be weight analyzing jury due capital sentencing how a reasonable understood instructions. are argument, Juries warned advance that missteps counsel’s remarks are mere can be occur, challenged they juries generally when understand that counsel’s are the assertions Thus, argument judged having “statements of advocates.” should “not be force as the same counsel, arguments as an instruction from the court. And the of of the like the instructions court, judged thеy must be (P._ the context in which are made. [Citations.]” [108 p. p. lightly L.Ed.2d at 110 S.Ct. prosecutor at court should not infer that a 1200.] “[A] ambiguous damaging meaning jury, sitting intends remark have its most that a exhortation, lengthy through meaning plethora damaging draw in will that from less terpretations.” (Donnelly v. 416 U.S. L.Ed.2d [40 DeChristoforo 1868], quoted Boyde California, analyze supra.) agree, S.Ct. v. We and we defendant’s nu prosecutorial misargument accordingly. merous assertions of First, contrary reasons. merit for several contentions lack
These in here given the instructions statute and suggestion, defendant’s . “any . . circum consideration which directs a “catch-all” factor clude not a legal it is though the crime even gravity which extenuates stance 8.84.1, CALJIC, 190.3, No. former (k); (§ factor excuse for crime.” this misled, should understand jury reasonable Unless (k).) factor and background character mitigating includes consideration phraseology at U.S. California, v. supra, trial. (Boyde at evidence introduced 329-330, 1198-1199].)22 at 110 S.Ct. pp. L.Ed.2d at pp. pp. evidence,” “all of was instructed consider jury Here the in mitigation evidence presented never prosecutor suggested Hence, “reasonable we see no defendant was irrelevant. of such evidence. the relevant scope likelihood” that the misconstrued 329, 110 at p. L.Ed.2d (Boyde California, 494 U.S. supra, p._ 512, 544, Brown, 17.)23 fn. Cal.3d 1198]; supra, S.Ct. at p. *42 sentiment, sym conjecture, The instruction “mere against court’s (italics added) feeling” or passion, public public pathy, prejudice, opinion misled, will understand jury Unless a reasonable analysis. does not alter our evaluation of the compassionate not foreclose that this instruction does emotion, evidence, only “factually untethered” against but warns mitigating 538, bias, v. U.S. 542-543 (California (1987) or outside Brown 479 pressure. O’Connor, J., 934, 941, see also of 837]; 107 S.Ct. conc. opn. L.Ed.2d [93 id., 941-942].) at 544-545 L.Ed.2d at pp. pp. [93 . . . are you sup-
The assert that “His Honor said not prosecutor did no consider or Defense counsel raised posed sympathy compassion.” 22 858, Easley (k) People pages 877-878 We construed v. 34 Cal.3d at so factor 512, 309, (See People (1985) 40 Cal.3d 541 Cal.Rptr. 671 P.2d also v. Brown 813]. [220 [196 cases, 637, Easley 440].) potential direct 709 P.2d To avoid confusion future trials, (k) subsequent penalty be modified to include reference ed that the factor instruction “any proffers . . ‘aspect character record . that the defendant other defendant’s or [the] (34 quoting v. p. a than death.’. . .” Cal.3d at fn. Lockett as a basis for sentence less 973, 990, [plur. opn.]; now (1978) 438 604 98 S.Ct. see Ohio U.S. L.Ed.2d [57 2954] vol.).) (5th 8.85 ed. bound CALJIC No. 23Boyde evaluating a constitution expressly appropriate standard for addressed federal impermissibly jury’s of rele ambiguous claim that restricted the consideration al instructions standard, Boyde reviewing mitigating past expressions evidence. After various vant [i.e., only if likelihood more held that constitutional difficulties arise “there is a reasonable way challenged “possibility”] jury applied instruction in than mere that the has p. constitutionally (494 . . .” at prevents relevant evidence . U.S. the consideration _ 1198], p. added.) adopt the “reason p. L.Ed.2d 110 S.Ct. at italics We thus at [108 sentencing ambiguous instruc likelihood” test for claims that the standard able defendant’s instruction, jury exploited prevented sympathy” prosecutor, “no tion as considering mitigation. from all relevant evidence event, objection. In any the context of the remark it clearly indicates was evidence, only jury intended to focus the on the rather than vague pity persons against forced to defend criminal charges.24 There no appears jury reasonable likelihood misinterpreted standard “antisympa- thy” instruction. admonition,
Nor did the prosecutor jury mislead with his brief defense, unchallenged by the that the jurors “weigh” must or “consid above, er” the presence family of defendant’s members in court.25 As noted the jury could be properly against cautioned emotional re free-floating that were to the sponses statutory extraneous factors and the sentencing Brown, aggravating mitigating evidence. (See supra, California O’Connor, J., U.S. at 542-543 L.Ed.2d at pp. pp. 940-941]; conc. opn. id., Brown, 544-545 L.Ed.2d at pp. pp. 941-942]; see also p. Cal.3d at supra, 544.)26
b. “Extreme” or mental emotional condition. statute,
Defendant notes that the
conforming
and the
instructions
here,
given
or
suggest that mental
emotional
only
disturbance is mitigating
factors,
In
argument
the course of an
that the
should not be distracted
extraneous
said,
prosecutor
go
may
[j|]
. .
up.
“Let me
to the .
ones that
one
come
that there can
derailment,
you
be
which is
one.
supposed
the emotional
His Honor said that
are not
[fl]
sympathy
compassion.
you
consider
supposed weigh
You are
the facts that
heard from
*43
physical
talking
[j|]
Sym
the witness stand and the
exhibits we are
about.
Those are evidence.
well,
know,
defendant,
pathy
you
person
says,
you
the
are a
always
who
I
position
take the
for
if
case,
underdog—the
underdog
therefore,
the
going
in this
lam
to be his ad
of
vocate,
defendant’s
going
up
(Italics added.)
lam
to stand
for
defendant.”
25
prosecutor argued
“you
The
testify [briefly
that
saw the defendant’s sister
on matters un
background],
related to defendant’s character and
and
children
and out of court. That’s
you
consider,
something
weigh
that
are not to—to
put
and should be
aside. It can—it
that,
grаb somebody,
you
grab somebody
jury.
you’re
can
doing your job,
on the
If
do
you’re being
.
. .”
distracted
.
suggested
26We
pertinent
jury
have
on occasion that
courtroom
“observation[s]”
be
could
considered even if not
(People
(1988)
reflected
the formal record.
v. Adcox
47
207,
55,
Cal.Rptr.
Cal.3d
[prosecutor may
258
argue
763 P.2d
that
[253
defendant’s
906]
883,
remorse];
cold
People
(1988)
demeanor shows absence of
v. Williams
44 Cal.3d
971-972
336,
Cal.Rptr.
judge may
751 P.2d
cite defendant’s “calm” trial
demeanor as
395] [trial
Brown,
weighing against
judgment]; People
supra,
p.
modification of death
As we have CALJIC, 8.84.1, the sentenc- by drawing (k)), factor former No. (k); factor gravity which extenuates “[a]ny other circumstance er’s attention or emotional crime,” mental of “nonextreme” allows consideration Cal.3d v. Ghent (See, e.g., People conditions. Moreover, find no basis reversal we 1250].) 739 P.2d subject. argument
prosecutor’s disturbance,” the or emotional “extreme mental Addressing (d), factor “extreme” distur- no evidence of such noted there was prosecutor simply later, diminished ca- (h), turned to factor bance. Moments the prosecutor he as involv- This described from “mental disease” or “intoxication.” pacity “mentally ... or the wrong ing something a situation where there was himself, . he . . was beside was so intoxicated somehow person noted, however, that there then prosecutor wasn’t normal person.” or mental added) no evidence” intoxication “absolutely (italics disease or disturbance. event, In any clarification. object request defendant failed
Again, evidence, there accurately characterized the state since the prosecutor ignore mental emotion- reasonable likelihood the was moved no supra, (See Boyde California, than “extreme.” al conditions that were less fn., 1198]; 110 S.Ct. at see also p. p. 494 U.S. at L.Ed.2d at p._ [108 *44 ante.) Sentencing
c. discretion. am urges vigorously prosecutor manipulated Defendant that sentencing sug in the instructions biguous statutory language standard must jury not determine the but gest “appropriate” penalty, could a assess contrary beliefs on the basis of mechanical impose despite death We are not mitigation. persuaded. ment of and aggravation Brown, 512, In v. 40 Cal.3d supra, we the 1978 construed death provision law’s that the penalty imposed “shall” on the depend sentencer’s decision whether factors in the case aggravating “outweigh” those in mitigation. (§ 190.3.) We suggested, among things, other that a capital penalty scheme would not if “pass muster” it re- [constitutional] a death quired judgment despite the sentencer’s belief that death was not under all appropriate (40 the relevant circumstances. Cal.3d We p. 540.) held, however, that the 1978 statute’s “weighing” con- language, properly strued, neither imposes “mandatory” sentencing formula nor limits the sentencer’s discretion to decide for which itself available penalty morally for the appropriate individual offense and offender. said,
“Weighing,” subjective we connotes mental it balancing process; does not either the suggest “mechanical counting factors each side” Rather, (italics added) or “arbitrary” assignment relative values. we observed, factors, [sentencer], by “the weighing various deter- simply mines under the relevant evidence which penalty is appropriate [it believes] 541, in the particular case. (40 added; Cal.3d at p. italics see [Fn. omitted.]” J., Lucas, id., also cone. & dis. opn. at p. 546.) that, We circumstances, acknowledged possibility particular in structions phrased the “unadorned” statutory language might mislead the sentencer about the nature of its task. We endorsed explanatory instruc tions for use in future cases. now (See CALJIC No. 8.88 (1989 rev.) (5th ed. pocket We also pt.).) undertook to examine each pr e-Brown trial such as “whether, context, defendant’s to determine may the sentencer been have misled to defendant’s about the of its . . prejudice scope . discretion.” Brown, 17, (People supra, Cal.3d at fn. p. 19.) fn. p. Serious prosecutorial misargument has occasionally led us to conclude that pr jury e-Brown was misled. (E.g., People Milner Cal.3d 253-258 669].) P.2d Here, we reject defendant’s contention that the prosecutor misled the jury about sentencing its duties. Defendant contends by using a homemade factors, scale to illustrate aggravating mitigating assigning arbi- trary factor, arithmetic values to each the prosecutor the impression created Further, the weighing process was sterile and mechanical. defendant out, points the prosecutor asserted that the penalty process automatic urged jury that the was not to decide whether death was In appropriate. context, a reasonable would not have its misunderstood task.
The penalty phase essentially retried whether the shooting Deputy Williams was calculated murder or unfortunate panic response. misde- violent prior had suffered two that defendant stipulations Beyond intro- evidence was convictions, mitigating or aggravating no other meanor duced. are not evidence. of counsel arguments that the was instructed jury
The defend- which penalty around counsel centered of both arguments And the defend- was to portray strategy The prosecutor’s for his crime. ant deserved killing the that urged prosecutor as “malicious cop-killer.” ant protect by desire defendant’s act motivated was “calculated” Williams nor he neither knew an officer By down gunning business. his narcotics itself, badge at the disliked, was shooting defendant argued, the prosecutor serious, said the this society. Conduct at the core of civilized and thus penalty. extreme for the law’s most called prosecutor, hand, doubt” counsel, “lingering to create sought other Defense on the defend- urged He theory killing. a planned about the prosecution’s Bassetts, killing, of his remorse the the ant’s claims of concern about valid, which death with those for crime did not compare were and that the was appropriate. arguments closing, his penalty (opening,
At several various points weighing,” a matter of just the did that “it’s rebuttal), prosecutor suggest “op- was no “alternative” completed, and that once was there weighing Moreover, in his was “automatic.” tion” and the determination weigh- concept closing argument-in-chief, illustrated prosecutor garage-built side of a the various factors on one or the other ing placing rebuttal, as factor on a In numerical values to each assigned scale. sheet,” of 22 aggravating a “score” ultimately reaching fictional “balance points against points mitigation. of his closing
But been At the outset cannot have confused. attorneys say reiterated that “what argument-in-chief, prosecutor illustration, assigned that his and his not evidence.” He scale emphasized values, undoubtedly were defense counsel would argument mere which Moreover, every turn that prosecutor acknowledged dispute. “weigh- involved against subjective, balance of was aggravation mitigation jury. He stressed entirely “counting,” up rather than ing” defendant had “earned death and fair” which “just penalty, In his own of a officer.27 killing police and deserved” the cold-blooded jurors job prosecutor that their was to closing argument-in-chief, informed the In his factors, they go aggravating side “decide to the evidence on the various listen [whether] side,” going give . . . weight I it? mitigating . determine “how much am or. . in the then *46 rebuttal, argument, and in the closing reply to defense counsel prosecutor’s responded vigorously that the must be appropriate penalty determined by by mechanical but procedures, the overall circumstances.28
We have expressed jurors concern that both the subjective understand nature the weighing and their discretion to determine the process appro However, priate penalty. contrary to the dissent’s the apparent assumption, “weighing” and “appropriateness” functions are not and separate indepen Rather, dent. we have made clear jurors they that “when are informed have they discretion to whatever assign value deem to the factors appropriate listed, they necessarily they understand have discretion to determine the . . .” appropriate Boyde . penalty (People Cal.3d 83, 758 is 25].) subjective P.2d The reason that the assignment weights very “is the jury means which the arrives at its and qualitative normative decision” about the in the proper punishment case. particular Brown, (Ibid.; see 40 Cal.3d at supra, p. 541.) Defendant urges that the nullified prosecutor this logic declaring spe- cifically in his argument rebuttal that the jury was not to decide the “appro- priate” penalty. The brief prosecutor’s remark on how- “appropriateness,” ever, a was made in limited a only context. It addressed dispute between as counsel to whether a comparison to other well-publicized murders was effect, In relevant. the prosecutor jury the properly urged decide on penalty the basis of the and aggravating mitigating evidence presented your job. got give That is weight weight. You have weight, to them. A a [U] little lot your That’s . anticipated decision . . .” manipulation He that the his defense would consider inaccurate, likely of the scales unfair and belong, and “will most debate where [the factors] you give may let me People’s position, argument disagree our [but] it. You it.” In with conclusion, prosecutor expressed you weigh confidence that “after the evidence and de- they weighted,. you cide what factors are impose just involved and how should be . . will a Later, rebuttal, fair . . prosecutor numerical-weight verdict. .” shifted to a analo- gy, giving you you but example. telling he admonished that “I’m I’m not these nu- that are merical, way you’re this is going may entirely that . . . do it . Your numbers be [H] may approach differently different. You ultimately urged it . . . .” prosecutor that “this has defendant earned and he now deserves maximum sentence." closing argument-in-chief, In jury’s his penalty defense counsel declared that the choice very, very high” “extremely involved “stakes are responsibility. and an serious” He re [that] you minded the penalty “all of have said . . that. there are cases where death appropriate appropriate and there are cases . . where it’s not . . We have a death [H] alternative, we give have an alternative. If ever a there was reason to it would be in for, case like . . . mitigating this one . aggravating That’s what the factors are [H] weighing reply, them.” In paying compliment after prosecutor’s sarcastic to the “well charts, done” danger laying defense counsel observed that “the to the out of factors way you it yourself makes seem as if. . . are divorce from the serious consideration of sense, important you’re most factor facing by, cop and the serious consideration what ping going type logic out and into a . . balance-sheet . . But I that’s don’t think what [1f] about, talking talking we’re what we should be about.”
1231 circumstances, not would jury a reasonable all the trial. Under defendant's this for penalty determine the appropriate to power assumed it lacked have reversal.30 no basis for We see and offender.29 offense Remorse. d. ab defendant’s claim that prosecutor’s challenges
Defendant
remorse
absence of
notes that
Defendant
of remorse
aggravating.
sence
was
38 Cal.3d
Boyd (1985)
v.
statutory
(see People
factor
aggravating
is not a
of
1,
that the issue
urges
P.2d
and
782])
700
Cal.Rptr.
771-776 [215
41 Cal.3d
(1985)
v.
People Davenport
only mitigating (see
can
be
remorse
the prosecutor’s
861]). Though
710 P.2d
Cal.Rptr.
288-290 [221
not
jury
reasonable
would
in certain
a
respects,
was incorrect
argument
misled,
penalty
no
possibility
there
reasonable
appears
have been
and
432, 448
46 Cal.3d
v. Brown (1988)
was affected. (People
verdict
604,
remorselessness the immediate scene the claim of aggrava- tion was Overt is a proper. statutory remorselessness factor in sentencing context, because (a) factor section 190.3 allows the sentencer *48 evaluate all aggravating mitigating of aspects crime capital itself Moreover, there is of nothing inherent the issue remorse which it makes mitigating only. The defendant’s overt indifference or callousness toward his misdeed bears significantly on the moral decision whether a greater lesser, rather than a be punishment, (Cf. should v. imposed. People Mitchell 805, 371, 63 Cal.2d 817 (1966) 409 P.2d Cal.Rptr. 211].) [48 hand, On the other of postcrime evidence remorselessness does not factor, statutory fit within any sentencing urged and thus should not be as Moreover, (Boyd, 38 aggravating. supra, Cal.3d at pp. 771-776.) prose may cutor here have overstepped suggesting that defendant’s claim of identity mistaken showed lack of We have remorse. noted the of unfairness a citing proffered defense as of proof remorselessness. v. (People Coleman 1159, 920, (1969) Cal.2d 1168-1169 459 P.2d Cal.Rptr. 248]; but see [80 People Miranda (1987) Cal.3d 744 P.2d Cal.Rptr. 1127].)
However, event, defendant raised no In objection. a reasonable would not have been misled. The prosecutor his tempered “aggravating rebuttal, theory remorselessness” in his only where he asserted defend- ant had to failed show remorse in It is for the proper prosecu- mitigation,32 tion to stress that is remorse not available as a mitigating factor. (E.g., Walker 47 Cal.3d 649-650 70].) P.2d For the most part, prosecutor’s arguments focused on overt defiance, of evidence defendant’s not his mere failure to guilt confess or express remorse. With or argument, jurors without can be to expected react Williams, to evidence of strongly overt callousness. (See 44 Cal.3d supra, at Their pp. 966-967.) response unlikely is to be influenced whether the prosecutor brands such merely evidence or “aggravating” “nonmitigating.” No basis for reversal appears. remorse, certainly Bencangey say, have the lack going and Mr. [defense counsel] ‘Well, Deputy sorry. sorry.’ but he told he telling Mace was He was When he is [fl] Bassettstory, Bassett,’ saying, sorry. thought he is ‘I’m I didn’t know who it was. I was it done, he sticks to that. Total lack of remorse toas what he’s And does do at what he [fl] Puente,’ goes yells, crowd he when out and the crowd outside—he ‘Viva and there was an- other, something My other—rifa goodness, type he think’s he’s some for what hero [fl] gentlemen, you, did. prove aggravation Ladies if that doesn’t I don’t know what [H] crime, persuade you. else we could have done The nature of the the circumstances [H] aggravating.” are crime 32 rebuttal, said, prosecutor In “Has he—there is—there nois remorse that has been fact, presented mitigation. part—as as far as There was no remorse shown on the a matter of remorse,
just contrary ‘Viva Puente.’ He’s a hero for what he’s done.” [fl] Age. e. of the offense time age defendant’s urged
The prosecutor youth “who was that defendant suggested He also aggravating. foolish,” rather but something and done to childhood may have regressed evidence, who, to defense according person “mature” and “sophisticated” leader. had been gang (i) under factor because argument improper asserts the
Defendant time of the 190.3, at the age defendant’s (i) factor (§ 1978 statute [“[t]he however, the As we have only mitigating. explained, can be crime”]), age *49 metonym any for age-related is “a formula sentencing factor in the “age” morality that or by experience or common by the evidence suggested matter counsel Accordingly, either reasonably penalty. inform the choice might Lucky every (People case.” inference may any age-related such argue The 1052].) 753 P.2d prosecutor 45 Cal.3d maturity were and experience that defendant’s not err suggesting did aggravating. Gang
f. reputation. assign prosecutor it for the urges Defendant was misconduct defendant, Ybarra that testimony witness aggravating weight defense of the target a high-priority as a leader of the Puente was reputed gang, credible, both if this evidence suggested Bassetts. The prosecutor “[cut] street “very, very gang of a violent” ways,” since defendant’s leadership be aggravating. should deemed di- any waived object
Defendant’s failure to admonition request theory. any other rect claim of misconduct. Nor reversal warranted for violence is not Boyd, We held 38 Cal.3d that a supra, reputation factor, may as statutory aggravating. and thus not be considered sentencing Here, however, credibili- ultimately discounted the (P. 778.) prosecutor no jury it substantial ty testimony, give Ybarra’s advised Hence, harm. not have caused substantial weight. his could argument Aggravation mitigation. versus g. of cer that the absence urging
Defendant cites prosecutor that the prose It does mitigating aggravating. appear tain other factors was “scale” and “balance sheet” aggravating cutor on the side of his placed as or emotional disturbance absence of such factors “extreme” mental (id., 190.3, belief in (e)); consent factor (§ (d)); participation factor victim or mental (f)); (id., (g)); moral factor extreme duress factor justification (id., disease intoxication (id., (h)); factor mere minor participation (id., factor (j)); аnd other mitigating (id., evidence factor In his rebuttal (k)). argument, prosecutor’s “score” of to 3 aggravating points mitigating points based on assumption felony the absence of convictions prior (id., factor; factor (c)) only mitigating was the all other statutory he deemed factors be aggravating. prosecutor thus formula. misrepresented sentencing The mere
absence of extenuating circumstances in the weigh case cannot in favor of Ghent, death. (E.g., supra, 775; Cal. 3d at supra, 41 Cal. 3d p. Davenport, 288-290.) at pp.
However, event, objection. defense counsel raised no In a reasonable misled, jury would not have been and there is no reasonable possibility verdict was aífected. The instructed to consider each sen- only factor “if tencing and was not misled applicable,” about the basic ante, nature of its sentencing task. (See 1227-1231.) discussion In his pp. argument, the prosecutor the bulk assigned of his proposed aggravating values to the brutal circumstances of the shooting, only nominal *50 weights to the absent He extenuating factors. cautioned that his frequently characterizations of aggravation and of mitigation, and relative weights, mere advocacy were which the jurors free to reject. were Defense counsel strongly urged the to jury decide penalty evaluating the overall circum- freedom, stances. Given such a jury assign reasonable would not substantial aggravating weight to the of absence unusual extenuating (See factors. Peo- Hamilton ple (1989) Cal.3d 1184-1185 Cal.Rptr.
P.2d 730].) Defendant to fails us that the persuade misstate- prosecutor’s justify ments reversal.
h. Premeditation/lingering doubt. urges
Defendant that the instructions and argument precluded the jury considering from its “lingering guilt doubt” about his of purposes the deciding appropriate penalty. (See People Terry Cal.2d 145-147 390 P.2d We 381].) disagree. notes, trial,
As defendant its the opening remarks at second penalty gave court the standard a jury admonition that previous already had found information, true charges jury’s and that the instant function was Hence, only said, to decide appropriate punishment. jury the court “this will not be concerned with the guilt issue innocence or in the sense that making determination.” (Italics added.)
Thereafter, counsel, observes, defendant both voir dire in argu- and ment, murder, agreed that defendant’s with or guilt premeditated actual duty, engaged a officer peace that the victim knowledge constructive counsel most, defense complains, At defendant already been decided. had by the guilt found only premeditation create doubt whether to sought serious or less suggested, as the plan, prosecution a calculated jury limited even this undermined prosecutor under stress. misjudgment asserts, should not jury “speculate” that the arguing defendant strategy, had found jury premeditation. why guilt the first However, concerns. In out defendant’s does not bear the record were jurors preclud- that the court ruled instructed the trial never place, penalty as a in the determina- doubt” considering “lingering from ed factor merely 146-147.) The court 61 Cal.2d at Terry, pp. (Compare supra, tion. so, with indicated, charged was not correctly jury that the penalty sense.”33 determination “in or innocence guilt making [that] Moreover, Depu- of the killing trial reexamined all aspects claims of jailmate discredit Acker’s sought Williams. The defense to ty mistake, of remorse and expressions defendant’s killing, show planned that the rival Bassett why had fears plausible demonstrate defendant his house. might attack gang final, verdicts, though argued guilt
Defense counsel extremely “are He theories wrong. prosecution’s were stressed . . . into shaky” brought when “open question, especially some death asking penalty.” with the fact that the are for the juxtaposition case,” . . . Mr. theory at one be what point, “Our of the stated “will Gonzalez’ was to the ... in the charge guilt phase.” defense
At not “ar- suggested certain his counsel he would points argument, on the prior finding possi- about the and he focused gue” premeditation, bility the have claims of a careful- guilt jury might rejected that still Acker’s so, ly killing. obviously In counsel to with planned doing sought cope manifest tactical evidence that defendant realized his victim problem—the extremely reasonably sought persuasive. was officer was Counsel police credibility the link preserve exploiting strong prosecu- weakest testimony of killing” jailhouse tion case—the a dubious “planned informant. hand,
On the other the that the prosecutor predictably argued People reprove they already proved guilt should not be what had at required Hovey (see Hovey Superior (1980) 28 during v. Court 33Defendant notes that voir dire 128, seated, finally Cal.Rptr. 1301]) juror even 616 of one who was Cal.3d 69-81 P.2d guilt jury’s premeditated peace of a that determination of murder counsel stressed defense only Again, to mean that de “accept[ed].” must this would have been understood officer be peace-officer murder was final as such. fendant’s conviction of 1236 over,”
trial. This case was said the “three-quarters prosecutor, jury and the “speculate’ why should not such matters jurors as found prior pre- “you meditation when don’t they know evidence heard.” circumstances, Under all these we see no basis a conclusion that the jury ignore any misled to lingering doubts about the People’s case when deciding which Defendant’s contention to appropriate. that rejected. effect must be
i. Failure delete inapplicable mitigating factors.
Defendant claims the trial court erred by failing to delete from the instructions those sentencing mitigation factors were presented However, by the jury evidence. was instructed to consider each factor only “if and it is not applicable,” inform the sentencer all improper factors the state deems relevant to aggravation and We have mitigation. consistently rejected defendant’s argument. (E.g., Melton People 44 Miranda, Cal.3d 750 741]; P.2d supra, Ghent, 104-105; Cal.3d at at pp. supra, 776-777.) Cal.3d pp. j. give beyond-reasonable-doubt Failure to instructions on issues aggravation mitigation versus and appropriate penalty.
Defendant advances claim that under the state and federal Constitutions, a must be instructed not to death con impose unless vinced beyond a reasonable doubt that aggravating circumstances outweigh circumstances mitigating and that death is the appropriate penalty. Miranda, contention lacks merit. (E.g., 107; supra, p. Cal.3d Rodriguez, supra, 777-779.) Cal.3d
2. Autopsy photograph.
Over objection defendant’s outweighed prejudice probative Code, (Evid. value 352), trial court an autopsy admitted photo depict § ing shotgun wound the victim’s chest. The court agreed with the *52 prosecution that the brutal manner by as demonstrated the killing, photo, malice, was relevant to premeditation, and The aggravation. court also found the with photo helpful respect to cross-examination of prior the medical examiner about how soon the victim died of his wound. us,
Before defendant renews his photo contention that was inflammatory had no and substantial The claim of evidentiary purpose. insufficient relevance has considerable merit. Medical Examiner Schnittker size, nature, had in straightforward testified detail about the and location would than bullet larger it much wound, acknowledged was had and that the wound dispute no serious testimony produced inflicted. The have The photo moments. death within and unconsciousness certainly caused v. Anderson People e.g., (See, pertinence. little independent thus had 1306].) 742 P.2d Cal.Rptr. Cal.3d discretion, how an abuse therefore admission was Even if photo’s chal examination of ever, independent Our was harmless. the error inflammatory. (E.g., unduly grisly not it was exhibit discloses that lenged P.2d 50 Cal. 3d v. Turner (1990) People 887].) gang testimony.
3. “Expert” to provide called in rebuttal was Sergeant Araujo La area. in the Puente and methods testimony about activities expert gang that, Araujo knew so far as testimony briefly also elicited The prosecutor information, Ybarra was witness defense and training, experience, from his objected counsel Defense gang. not an member of the Bassett active examination, his Araujo conceded opinion moved strike. voir dire During to unknown to sheriff’s Ybarra’s name was based on the fact that only was con files. The court investigators appear department’s and did evidence was community-reputation that such inference” “negative cluded Therefore, objec the court sustained the Ybarra. incompetent to impeach strike, tion, disregard and admonished granted the motion subject on the of Ybarra. Araujo’s testimony inflammatory, is so Defendant now that because evidence urges “gang” bell,” a mistrial was “unring the admonition was insufficient made, However, the issue was for a mistrial was warranted. no motion member, not a gang court evidence that struck someone tangential, patently claim is fully and the admonition sufficient. Defendant’s unpersuasive.
4. verdict. Automatic motion modification of a pro that the trial considered argues judge improperly
Defendant motion for denying not in before the automatic report bation evidence 190.4, section (§ (e) (hereafter modification of the verdict. subd. death erred, claims, by the absence of 190.4(e)).) judge citing also defendant circumstances; by to note the ab failing factors as mitigating aggravating factor; mitigating sence of exercise failing felonies as prior verdict. the evidence independent judgment supported whether *53 modify refusal to the verdict. overturning judge’s We find no basis for the 1238
The court and both counsel assumed consideration of probation report would be proper assent, of the section purposes 190.4(e) motion. With defense counsel’s hearing the motion was continued for preparation such a read and report. judge considered report prior the to the hearing.
In so doing, judge erred. On a motion under section the trial 190.4(e), judge limited to Thus, the evidence presented to the he penalty jury. should not consider an outside report until his capital sentencing responsi 262, bilities are v. Lewis 50 complete. (People (1990) Cal. 3d 286-287 [266 834, 1268, Cal.Rptr. 892]; 786 P.2d Williams 45 Cal.3d 1329 Cal.Rptr. 756 221].) P.2d may
Defendant have waived the error agreeing consideration of the event, In report. a new modification hearing is not There necessary. no appears reasonable possibility thе court’s consideration of improper affected the report section 190.4(e) ruling. (People Ramirez (1990) Cal.3d Williams, 1201-1202 P.2d 965]; supra, 45 Cal.3d at pp. 1329-1330.)
Defendant stresses that the contained some report prejudicial and inaccu- However, rate material beyond the trial evidence. in his oral ruling, judge only referred briefly to the report, noting that sig- it contained no mitigation.34 nificant new For his conclusion that aggravation outweighed doubt, mitigation beyond a reasonable the judge exclusively relied almost on his views about the crime itself. capital As he explained, trial evi- dence him “senseless, convinced that defendant had committed a brutal- murder,” type that a mistake about the officers’ identity was “inconceiv- able,” that defendant acted “calm[ly] and “callous[ly],” and that the homi- cide amounted Thus, savage “assassination” of Williams. Deputy Lewis, contrast with supra, Cal.3d comments in judge’s this case make clear that he was not influenced by information presented at the penalty trial.35
Defendant’s claims that the judge confused the absence of mitiga tion with aggravation, and found “no mitigating evidence” despite hearing Defense counsel conceded mitigating background the absence of in report formation stemmed from defendant’s to cooperate. refusal judge erroneously Defendant testimony, claims guilt considered phase defendant’s jury, which was not penalty before second when he remarked that defendant was “not be ing truthful with the Court with the thought raiding when he stated that that [the gang trial, were though members.” Even testify penalty officers] defendant did not at the however, identity his claim of mistaken formed the basis of his pre defense. It was Overlease, through testimony sented Deputy hospital, who interviewed him in the Mace, Deputy to whom he made remorseful statements the ambulance. The defense also evidence, Ybarra, presented through circumstantial witness that defendant’s fears of attack by the gang Bassett had some foundation.
1239 record, to that from statements stem felony apparently defendant’s clean and included court clerk the order entered minute unsigned effect in the noted contrast, ruling simply oral By judge’s the transcript. in the clerk’s that never stated factors; judge mitigating of various absence remarks, Moreover, in his oral to be aggravating. such absence found mitigation assertion defense counsel’s agreed with judge expressly introduced.” that was conviction felony prior no evidence of “there was pro- these, 190.4(e) Section must ruling prevail. the oral In like conflicts findings” his the reasons for the record “shall state on judge that the vides (Italics minutes.” Clerk’s they be entered on the “direct that and shall summary impression clerk’s The minutes added.) typically represent and himself reviewed judge evidence that the Absent ruling. the court’s minutes, his actual assume that we must of the wording approved oral record. on the he stated personally is that which reasoning judge claim that the defendant’s Finally, the record does not support (See People mitigation independently. failed to and reweigh aggravation 844]; 771 P.2d Cal.Rptr. Cal.3d (1989) Bonillas stated 793-794.) judge expressly 42 Cal.3d The Rodriguez, at supra, pp. “do, by “all mitigating outweigh in fact” circumstances aggravating case,” beyond including that are in criminal of the standards applicable belief length personal reasonable doubt. The further declared judge calculated, brutal, Williams killing Deputy particularly that the was cold-blooded, no contrived. He found the defense was weak and and that felony lack of convictions. mitigating beyond prior evidence ruling weighing uphold indicia of are adequate These independent make The comments judge’s on the motion for modification of the verdict. close, conclusion his determination that the balance was clear 1187.) 48 Cal.3d at (Hamilton, supra, p. the record. amply supported merit, Thus, of error had there even if one or more of defendant’s claims motion. the outcome of the reasonable that the errors affected no possibility P.2d v. Heishman 45 Cal.3d (People 629].) No basis for reversal appears. Corpus
IV. Habeas original supplemental While the defendant filed pending, appeal trial petitions guilt for habeas asserted that counsel’s corpus. petitions in several constitutionally defective penalty phase representation wrongly withheld prosecution pertinent other and that respects, *55 evidence.36We issued an (O.S.C.) order show cause and consolidated the habeas matter We no corpus with now find basis for appeal. disturbing guilt judgments. issue;
A. Massiah/Henry
credibility
Acker.
informant
of
”
Defendant criticizes counsel’s failure to
a
pursue
“Massiah/Henry
claim that informant
testimony
Acker’s
should be excluded because Acker
was a government agent
through
deliberately
whom
incri
police
elicited
minating admissions in violation of defendant’s
to counsel.
right
(SeeMaine
481,
v. Moulton
474
(1985)
U.S. 159
L.Ed.2d
106
477];
S.Ct.
United
[88
Henry
115,
States v.
We amended the eliminate original show-cause order to these issues. We thus implicitly determined that the failed to petitions state facie prima 333, case with respect Bloyd to Acker. v. 43 (People Cal.3d 363 (1987) [233 368, 870, Cal.Rptr. 802]; 729 P.2d see In re 2 Hochberg (1970) 873- Cal.3d 2, 875-876, fn. fn. 4 Bloyd, 471 P.2d As in 1].) supra, [87 we briefly explain that conclusion here.
The critical Massiah/Henry issue for is the purposes government’s “knowing exploitation” an opportunity to coax information from for mally Moulton, charged lawyer. (Maine the absence of his suspect v. Whitt, 474 supra, U.S. at 176 p. p. 496]; L.Ed.2d at see 36 supra, Cal.3d at p. likely state has created situation it with provide [“whether incriminating statements”].) The accused’s rights are not infringed by government’s mere acceptance gathered by information an inmate on his initiative, own if even the general authorities have a policy encouraging Williams, inmates to listen and report. 44 Cal.3d (People supra, Whitt, 1140-1141; supra; see also Kuhlmann Wilson 477 U.S. However, arguments virtually Similar appeal. are raised in the direct defendant concedes claims, appellate provides inadequate they that the evaluating record basis for and that context, appropriately are most corpus. considered on habeas We therefore treat them in that referring pertinent appropriate. trial evidence where must 364, 364-365, go action 106 S.Ct. [police L.Ed.2d 2616] if Moulton, gov- violation listening”]; supra, p. “merely beyond [no happenstance”].) “luck or by mere obtains information ernment from defendant information he elicited on the stand that Acker insisted *56 or initiative, knowledge, promises, and without official on his entirely own coun of appellate nor the results the trial record encouragement. Neither There this claim. undermines investigation corpus exhaustive habeas sel’s Acker’s sure, years and are, that in the months indications ample to be after defendant, and informed frequently Acker July 1979 conversations with for his authorities, benefits substantial and that received for the testified However, investigation nor counsel’s trial neither the record at cooperation. July began history of cooperation evidence that Acker’s discloses before I979.37 case, of a this by police direct motivation
Absent evidence of from which Acker and the authorities between “working relationship” prior inferred, to hold the police be there is no basis encouragement might such Whitt, supra, (See defendant. question accountable for Acker’s decision Thus, facie case has to state a 744.) prima at defendant failed p. 36 Cal.3d Massiah/Henry claim was over of a meritorious potentially that evidence Fosselman, 583-584.)38 pp. 33 Cal.3d at supra, looked or withheld. (See claims that incompetence defendant’s Nor are we persuaded im the defense effort to materially impeded misconduct prosecutorial trials, under he was credibility. Acker’s At both Acker disclosed peach crimes, murder, ex serious implicated for one other sentence At the for his custody cooperation. penalty return protective pected time, retrial, by that he had informed Acker further conceded that Defense in several in return for benefits. counsel’s protective testified cases inconsisten evasiveness and exposed cross-examination on both occasions nature of his with relationship cies Acker’s claims about exact authorities. information Acker’s corpus
The habeas disclose some about petitions not at defendant’s history might presented criminal have been but was 37 1979, July in apparently provided Acker had in isolated instances before information evidence, cluding pending against at least him and his wife. The available one murder case trial, only previously presented supports most which that he had informed claim personally implicated he felt or involved. where 38 government agency suggests if Acker’s has Defendant that even no concrete evidence of surfaced, enough suspicion justify yet postjudgment investigation has counsel’s aroused However, cause, discovery, as reference to the true facts. we order to show and a determine below, fully obtaining discovery corpus postjudgment is not a device for discuss more habeas speculative claims.
1242
However,
trials.
these additional details
significantly
do
different
paint
picture Acker’s character and motives than
on the
appears
(Cf.
record.
673,
674, 683-684,
v.
Delaware VanArsdall
475 U.S.
(1986)
680
L.Ed.2d
[89
1431].)
S.Ct.
Even if this information was overlooked
trial counsel or
should have been
by its
proffered
prosecution,
omission was harmless
beyond a reasonable doubt and does not undermine confidence in
guilt
667,
or (United
verdicts.
States v.
Bagley
U.S.
674-678
(1985)
481, 488-492,
L.Ed.2d
105 S.Ct.
3375];
Washington,
Strickland
supra,
[87
668,
466 U.S.
L.Ed.2d
697-698];
Chapman
California
710-711,
386 U.S.
L.Ed.2d
87 S.Ct.
Finally,
the extent defendant claims Acker
himself
perjured
with
the prosecution’s knowledge and
his
approval,
allegations are also deficient.
The petitions
to a number of
point
contradictions in Acker’s
on
statements
However,
the stand in this and other cases.
one cannot state a
facie
prima
case
or
perjury
concealment simply by showing inconsistencies in the
testimony. (In
witness’s
re
Waltreus
(1965) Cal.2d
9,
B. Mental defenses.
Defendent claims trial counsel erred by failing investigate and present evidence of brain at organic damage both the and guilt state, trials. As for the an support impaired existence of mental the original 25, 1981, petition proffered report, September dated of the psychiatric evaluation performed upon defendant’s admission to posttrial Quentin. San defendant, illiterate, indicated report though displayed normal- range intelligence and did not exhibit “either or severe psychosis neurosis.” however, results, On the basis of certain test report diagnosed “atypical disorder, personality . . . with neurological impairment.” “Such guilt Defense counsel and the phase were aware of Acker’s involvement crimes other than the California murder Acker had disclosed. Counsel asked Acker if he had gave informed his essentially wife the “Hawaii murder.” Acker an evasive answer that point. penalty phase, conceded the wrong” At the Acker admitted he had “done and “there’s been two murders.” thinking in concrete “may result report opined, neurological damage,” impaired judgment.” 4,1986, declaration, dated June presented The supplemental petition diag- Stein, Confirming prison neuropsychologist. Dr. David private nosis, organic, possibly indicated testing his own Dr. Stein asserted condition, Dr. Stein This cerebral cortex.40 defect in defendant’s prenatal, span, attention limits defendant’s thinking, literal causes suggested, highly accurately, events fast-moving ability unfamiliar perceive impairs good judgments make options to evaluate his capacity and reduces believed that “once Dr. Stein opined stress. Specifically, under [defendant] he could the officers’ approach, be in from danger himself or others” to have could not accurately developed as the situation have responded premeditation. calculation or engaged inves- pretrial an adequate that if counsel had conducted urges
Defendant family that defendant’s have learned from defendant’s tigation, would himself had her that defendant seriously ill during pregnancy, mother disabil- learning he suffered from severe medical and that lifelong problems, asserts, This, led to seek a pretrial should have counsel ities. defendant of defendant’s medi- and to obtain available records evaluation psychiatric *58 history. psychological cal and issue, and facie on this prima
We concluded had stated a case defendant original in O.S.C. The and supple- therefore included it our amended we to the claims of petitions’ returns counsel’s response mental include trial he knew mental de- although Trial counsel asserted that incompetence. raised, and conversations could be his observations of defendant his fenses On the con- family impairment. members no hint of mental with disclosed alert, asserts, and and he trary, partici- counsel defendant seemed normal he attached discussions. Counsel indicates knowledgeably strategy pated illiteracy, reading skills are poor little to defendant’s because significance for reasons unrelated to mental abili- common low-income communities declared, raise a Finally, adamantly trial counsel defendant refused to ty. mental defense or to to a evaluation. psychiatric submit uncontroverted, are and we
Trial counsel’s declarations this regard need stan- find them without reference. constitutional dispositive “reasonableness,” viewed from counsel’s performance dard of counsel (Burger his v. challenged Kemp at the time of act omission. perspective 40 given specifically detail. He does Dr. Stein’s declaration does not describe tests reading span, also refers the Rorschach test admin mention tests of skill and attention Considering training, we assume istered San Dr. Stein’s nonmedical to defendant at Quentin. no medical were tests administered.
1244 776, 638, 654, (1987) 483 U.S. 789 S.Ct. 3114]; L.Ed.2d 107 Strickland [97 647, v. Washington, 466 U.S. supra, at 688-690 L.Ed.2d at pp. pp. 693- [80 To 695].) investigative constitutionally establish that omissions were assistance, ineffective must defendant show at the outset that “counsel knew or should investigation have known” further turn might materially fa- up Williams, 883, vorable evidence. v. (People 44 Cal.3d supra, 937.) Criminal trial counsel have no blanket obligation investigate possible defenses, Williams, “mental” even ain case. 44 capital (People supra, v. 142, Cal.3d at p. 943; see v. Frierson 25 People (1979) Cal.3d 164 [158 281, Cal.Rptr. All 587].) 599 P.2d our cases finding culpably deficient investigation of diminished have initial capacity involved facts known counsel from which he reasonably should have that meritorious suspected 1247, defense was (E.g., available. In re Sixto 48 (1989) Cal.3d 1257-1262 491, 774 Cal.Rptr. P.2d claimed unconsciousness [259 164] [defendant intoxication; caused alcohol and PCP theory entire defense there based 404, on]; (1987) Ledesma 43 Cal.3d Cal.Rptr. P.2d knew of defendant’s long history PCP and metham 839] [counsel phetamine abuse]; People Mozingo Cal.3d (1983) 934 [196 212, 671 Cal.Rptr. P.2d [reports furnished to counsel con pretrial 363] Frierson, tained “significant” indications of psychiatric problems]; supra, Cal. 3d 162-164 pp. [pretrial ingestion information of PCP long-term use; drug this was sole possible defense]; In re Saunders Cal. 3d 1036-1037 472 P.2d awareness from [pretrial 921] defendant’s organic mother brain damage long-standing psycho logical problems].) drafted,
Though artfully and its supplemental petition attached decla- rations do not indicate that the possibility convincing “mental” evidence *59 reasonably should have been attorney. to a apparent They do not competent history indeed, abuse; recite a of drug to according trial counsel’s uncontro- verted representation, defendant discounted such abuse as a for basis de- They fense. do not claim that alleged defendant’s mental disabilities were obvious from his demeanor or they conversation.41 do that suggest Nor family members any volunteered specific history information about his of learning difficulties which might trial counsel’s trigger suspicion. Trial aware, counsel was presumably as evidence at the guilt trials 41Passing brother, reference to “demeanor” is made in the declaration of defendant’s older George Recalling trial, Gonzalez. George his observation of defendant’s states: “Another my thing always differently was when speaks brother testified. He has been slow and than people. always problem very slowly most I think because of his explains things brain carefully, so long happen tendency “[explain] it sounds like it took a . . . .” time to But a to counsel, things slowly carefully,” apparent hardly suggests if even to impairment. mental record, Though difficulty acknowledge discerning we demeanor from the our cold own testimony triggers suspicion. review of defendant’s no such
1245 a former as neighborhood respected defendant was that implied, circumstances, no basis to conclude we see leader.42Under youth gang mental de- investigation an to by trial counsel any pursue that failure unreasonable. fenses was in an such defenses
Moreover,
he did consider
counsel states
though trial
caution,
affirmatively refused
that defendant
it is undisputed
abundance of
that
failing to take steps
cannot be faulted for
Trial counsel
to cooperate.
v. Haskett
to give. (People
his client declines
require cooperation
776].)43
640 P.2d
Cal.3d
defenses
course,
to
that mental
counsel has reason
believe
Of
where trial
advisable,
not ex-
does
the client’s initial
may
opposition
be available and
client with an
to
investigation
present
an
sufficient
cuse counsel from
934.)
Cal.3d
Mozingo, supra,
(People
tactical choice.
informed
However,
trial
fail
reasonable steps
instant
to show what
petitions
cooperation
defendant’s
in this case could have taken without
counsel
theory now
the intricate
feasibility
organic-brain-damage
determine the
(See
L.Ed.2d
Burger v.
The alludes supplemental petition family information about And the available not attach or describe them. “slowness,” such as illiteracy, and medical lifelong problems defendant’s hardly basis for adequate professional opinion asthma seems Under all the circum- organic impairment defense of mental succeed. might stances, that trial fail to an inference grounds establish pleadings constitutionally ineffective assistance on this issue. counsel rendered We notion that the mental evaluations reject posttrial also corpus. relief on habeas “newly warranting constitute discovered evidence” outset, trial mental evaluation undergo prior At the defendant’s refusal There are evaluations. any collateral attack based posttrial prejudices Gonzalez, petition, George supplemental confirms attached to the The declaration gang activity younger and . . . looked when involved [he was] “[defendant was] by many up people neighborhood.” in the Gonzalez, defendant’s supplemental petition attaches the of Brenda sis declaration ter-in-law, insanity.” “plead “We all *60 asked if defendant would which states that counsel recounts, crazy. thought strange,” this Brenda “since isn’t [Defendant] [defendant] very crazy.” assuming the truth of this version of upset about this and said he isn’t Even events, speculation response might reject implied have been different we that defendant’s unlikely highly question precise. had We it that defend if trial counsel’s been more consider simply opposed a defense on his mental deficiencies because it was labeled “insani ant based family’s ty.” conceding subject of raised in the We note also that mental defenses was credibility presence, Brenda’s casts doubt on the of the claims other close fam declaration ily explored with them. members that trial counsel never such defenses
1246 obvious difficulties with a claim that a defendant is entitled to a new trial because he prevented diligent pretrial discovery of critical himself evidence. event, any
In
the proffered mental evidence
not
does
meet the require
ments for
“newly
collateral relief based on
In
discovered evidence.”
con
claims,
trast with ineffective assistance
high
newly
standard for
dis
“[t]he
covered evidence claims
that all the
presupposes
essential elements of a
presumptively accurate and fair proceeding were
in the
present
proceeding
whose result is
...”
challenged.
(Strickland v. Washington,
[Citation.]
466
supra,
U.S. at p. 694
L.Ed.2d at p. 697].)
[80
Thus, a
may
criminal
be
judgment
collaterally
on the
attacked
basis
“newly
only
discovered” evidence
if the “new” evidence casts fundamental
accuracy
doubt
reliability
of the proceedings. At the guilt phase,
evidence,
credited,
such
if
must undermine the entire
case
prosecution
(In
point unerringly to innocence or reduced
re Hall
culpability.
(1981)
Cal.3d
Cal.Rptr.
In re
690];
P.2d
Weber
[179
Cal.3d
First, general assertions that defendant exhibits concrete and distorted naivete, perception, memory, bad limited attention span, poor ability to under stress cope conclusively do not and unerringly negate the elements of Nor, alone, malice or premeditation. they are standing evidence compelling in mitigation. They do not directly explain or extenuate the homicide. While they may arouse some general sympathy, the sentencer also might many conclude that nonmurderers have similar difficulties.
Second, Dr. Stein’s conclusion that defendant probably could not react “once properly believed himself or others to be threatened” physically [he] Thus, assumes the truth of disputed defendant’s claim of fear. honest this evaluation cannot be deemed crucial to guilt or penalty.
Third, retrial, under the law applicable to Dr. Stein’s guilt opinion that defendant’s brain damage rendered him making “incapable the reasoned cold and judgment calculated for a required finding premed degree itated first murder” is incompetent. Penal Code now precludes witness from expert testifying at the guilt phase “as whether the
1247 (§ 29.) mental states. required have” specific had or did not defendant ex post or only, affects no due process is procedural This prohibition adopted. it was before crimes committed thus to rights, applies facto and 337, 610]; Cal.Rptr. (1985) Cal.App.3d v. [214 Whitler (People Cal.Rptr. 968-970 152 Cal.App.3d Jackson (1984) [199 see 848].)
Fourth, pre phases prosecution guilt penalty at both the Acker, evi circumstantial and substantial through evidence sented direct witnesses, did act with defendant a number of other through dence kill officer. Acker said malice, police a and the intent premeditation, business, delib that, he his narcotics in order to protect admitted defendant indica There coming.” strong “had it were who erately “bag[ged] cop” leader, defendant, have believed could not gang an experienced tions that he claimed. under attack as gang this face, negate do not eliminate or Stein’s On their Dr. declarations defendant from prevented brain “organic damage” The claim that evidence. that can be no concrete fact to the raid states police responding properly objective credibility by or other by an of Dr. Stein’s verified assessment well-considered, are but Dr. assertions Stein’s means. However sincere inherently debate. generate expert of the kind which opinions professional Code, et Stoll 49 Cal.3d seq.; People (1989) Evid. (See § Even if unrebutted 698].) prose 1155-1159 783 P.2d Cal.Rptr. they about defendant’s experts, merely sharpen existing dispute cution most, that issue. they conflict with the trial evidence on state of mind. At guilt for the more difficult they might presented questions While thus have not as “new evidence” that fundamental penalty juries, they do qualify (In 788, 802 Wright re ly Cal.App.3d undermines the judgment. 535].) background. C. Character and investigate and present claims trial counsel failed
Defendant at the background of his character and substantial evidence mitigating investigation, an inadequate Because the phase. petitions suggested After O.S.C. the issue in our amended preserved we receiving traverse, matter to we referred the return and supplemental Court,44to report of the Los Judge Angeles Superior Richard P. Kalustian preju filing a sought disqualify Judge Kalustian motion and affidavit Defendant statute, challenge” section peremptory Code of Civil Procedure dice under the “one-time statutorily grounds it We from the record on that was 170.6. ordered the motion stricken commissioner, terms, only By applies “judge, court or refer its 170.6 authorized. section (Italics wording companion added.) The superior, justice court.” municipal, ee [a]
on the following What kind of questions: (1) background character and evidence than mental (other evidence) and emotional from was omitted (2) investigative trial? What steps discovery would have led to of such constraints, evidence? What financial or tactical if any, weighed against any such investigation or What presentation? (4) rebuttal damaging evidence, any, if likely “would have been if a presented” character and background defense had proffered? been
The referee took extensive evidence and made numerous findings In and conclusions. answer to (1), the referee found that question defendant a child; school; was “slow” as had a in only tutor read at special the third grade level when he inwas the seventh and eighth grades; was generally an adult; as employed jobs “had of a ‘remedial’ type;” enjoyed a loving, caring, nonaggressive relationship with his own child children; and other family was oriented and of his respectful parents; and not known by relatives to be a gang member involved in narcotics. In answer to ques tion (2), the referee found that this information about defendant’s back ground and character “could have been easily by obtained talking family members and the school authorities.”
In answer and questions (3) (4), the referee found there were no financial or tactical against constraints investigation of mitigating character However, concluded, and evidence. background there “seems to be a sound tactical reason” not to have such presented evidence of the light potential for damaging rebuttal.
The referee noted that “other crimes” evidence at the trial con- only sisted of stipulations to defendant’s misdemeanor convictions as- However, sault battery in 1972. according to evidence reference hearing, defendant had been charged in bizarre drive-by shooting incident that led to the mistaken one of the killing participants Moreover, revealed, his own father. the reference evidence battery conviction stemmed from gang-rape incident in which defendant initially accused as one of the rapists.
If evidence, defendant had introduced mitigating character the referee found, 1966, 1969, he faced exposure the underlying circumstances of the incidents in rebuttal. The referee concluded the 1966 and 1969 suggests judges statutes that section 170.6’s limitation to trial court and referees was inten- Proc., (Compare tional. Code “judges” Civ. 170.3 for purposes of 170-170.J § [word §§ courts, “judges justice, municipal, means of the superior and court commissioners and (italics added)].) appointed appellate acting One as its court referee is not referees” 170.6, capacities if happens included section even he or she be a also trial judge. court *63 likely it was not dilemmas because tactical did not present matters probably nature of the prove live witnesses to have produced could the prosecution those cases.45 involvement in defendant’s
However, observed, more serious incident presented the 1972 the referee P., police told the and Mona Irma N. complainants, Both problems. tactical gang-raped of men who Irma and was one several had beaten defendant her of the time that fear statement at the The referee noted Irma’s Mona. occurred, and the case was testify. to No trial her reluctant made suspects charge. to a reduced plea resolved on defendant’s her initial accusa- the reference and retracted hearing Mona at appeared concluded, Nonetheless, the prosecution the likelihood that the referee tion. about the incident was rebuttal evidence damaging have presented would trial counsel.” to be “a cause of concern to strong enough testify Mona available to The referee found that trial, her rape Even if she had withdrawn though not then under subpoena. determined, there, have believed the jury might the referee accusation referee, fear. the incident was only According retraction arose from to to the it a new dimension of violence unrelated aggravated, and “added be gangs.” of the turf from other evidence would gang’s protection concluded, if unable to the referee even damaging, prosecution However, beyond guilt defendant’s reasonable doubt. prove rape given “no of the to be expressly finding weight referee made [defendant’s] rape.” evidence or evidence of the 1972 People’s] character [the are, course, to subject A conclusions inde findings referee’s However, aby of fact substantially findings review. pendent supported are entitled in view the referee’s great weight opportunity referee Ledesma, 219.) Cal.3d at (E.g., suprа, p. observe witnesses. In all here us to respects, persuades adopt material record We Judge findings. Kalustian’s are convinced that counsel’s decision not members was background family character and evidence present through observed, event, clearly aggravat In the referee the facts of these incidents were not ing, might mitigation. According po and defendant even have been able use them in to the reports, defending younger his lice the 1966 case defendant claimed he was brother from case, uncertain, schoolyard bully. charges In of at the 1969 defendant’s involvement was Moreover, tempted dropped. murder were the homicide victim in the 1969 case was killed when, drive-by shooting, following participation parents’ his he ran to house with father, attack, believing gang opened the police pursuit. The victim’s he was under hot argue killing could shotgun, and fired his his son. The referee observed that defendant door years gang neighborhood supported this incident his own honest fear attack the same later.
tactically motivated concerns that such plausible evidence be might We outweighed damaging rebuttal. further conclude that counsel’s choice, though based on than investigation, less exhaustive was adequately informed and reasonable under the We circumstances. therefore find no basis for relief on habeas corpus.
The hearing character produced background testimony from George Gonzalez, brother; defendant’s older Patricia defendant’s former Espinosa, *64 sister-in-law; Jesus, Raymond De brother-in-law; defendant’s former Maria Blanco, Gonzalez, by marriage; defendant’s aunt Martha defendant’s wife Furth, time the Williams shooting; and Dr. Pauline defendant’s girlfriend’s pediatrician. These witnesses testified that generally defendant child; had often been as a sick that he struggled learning with disabilities always schools; and went special to that he caring gentle, was and especially children; child; with that he his loved own that he was respectful his family protective and of the neighborhood; husband; that he a good and that despite illiteracy, such obstacles as he struggled assume adult re- The sponsibility. professed witnesses generally ignorance of his involvement in serious or drug gang activities.
Trial counsel testified that he chose “lingering doubt” as his penalty defense because this produced “hung” tactic penalty jury, first and be- cause of reservations expressed by guilt jurors. several professed Counsel generally aware of background defendant’s from conversations with defendant, Gonzalez, his mother Matilda and family other members. How- ever, counsel conceded he did not “seriously” a charac- explore consider ter and background defense at the penalty phase.
Counsel acknowledged that character mitigating background evi- dence would not have conflicted substantially with lingering-doubt strat- However, egy. counsel concern about evi- expressed damaging rebuttal dence. In particular, counsel noted he by had achieved “damage control” limiting prosecution’s case-in-chief to mere about stipulations defend- However, ant’s prior battery misdemeanor convictions for assault. counsel knew defendant had an extensive record of arrests before drug moving to Mexico in 1972. Counsel had also read the police report on the incident, in which P. and Mona Irma N. named defendant as one of three men at who party beat both women and Mona. Accord- gang-raped to the ing report, both Mona and Irma to the that had reported police they been threatened with if they prosecuted. death noted,
As against 1972 case ultimately charged defendant was resolved as misdemeanor battery upon Irma. Counsel that stipulated conviction at testimony and no live penalty phase, the matter was however, he relied on said counsel hearing, At the reference presented. . . aggra- “had . the prosecutor representations” “direct “the witness” and that report, in the police indicated vating evidence” as testify at the Mona) was available (presumably the 1972 case trial. any exception- him counsel, given had not family members
According as abuse such background, information about defendant’s ally sympathetic trauma, loving raised in a defendant had been and it appeared or emotional circumstances, counsel concluded these family. Under and responsible rebuttal outweighed by be family testimonials would eifect mitigating serious violence. past evidence suggesting entirely principle. tactical choice was reasonable
This revela with unfavorable may penalty evidence mitigating rebut prosecution rebuttal, neither In is bound defendant. the prosecution tions about the *65 nor statutory (§ 190.3) evidence aggravating its notice of pretrial 42 at Cal.3d (Rodriguez, supra, in the factors set forth statute. aggravating of 791; Boyd, 775-776.) possibility damaging 38 Cal.3d at supra, pp. p. to in decision whether necessary pre rebuttal is a consideration counsel’s background. character and sent evidence about defendant’s mitigating (See 789, 654].) 483 at fn. 7 L.Ed.2d at Burger p. p. v. U.S. Kemp, supra, [97 of “must relate
In recent have cautioned that the rebuttal years, scope we trait defendant offers in his directly to a incident or character particular 24; . . 42 fn. see also (Rodriguez, supra, own behalf . .” Cal.3d p. However, be that test can Boyd, 792.) Cal.3d at supra, p. event, so any to the limits rebuttal were not permissible difficult in of apply; Hence, a competent clear at the time of defendant’s trials in 1980 and 1981. in that the risk of attorney could conclude position prudently counsel’s of character and back against rebuttal damaging weighed presentation general.46 ground evidence sufficiently make an urges
Defendant that counsel did not to investigate choice, inquiry “informed” have complete might tactical and that more offering prosecution claims counsel should have realized the was barred from Defendant prior presented had case-in-chief. rebuttal evidence of violence that not been its Defendant may withholding prosecution principle surprise” cites the “unfair cru that the not create (See Bunyard (1988) guilt, People it presenting cial evidence of then in rebuttal. defendant’s 795]; People (1957) 48 45 Cal.3d 1210-1211 756 P.2d v. Carter 665].) the Car Cal.2d 753-754 P.2d There is no evidence counsel failed to consider Moreover, issues; only penalty applied guilt application ter to rule. Carter has been its to trial, capital special problems phase aggravating phase of a and rebuttal to evidence, certainty explored. have never There no counsel could have blocked rebuttal been law, he cannot be fault rape. evidence on the In view of the unsettled state based possibility. ed failure to consider that asserts,
altered counsel’s assessment. Specifically, defendant fact that been to a rape complaint battery had reduced misdemeanor conviction P., victim, should have alleged alerted counsel interview Mona determine give damaging testimony.47 whether she would fact
Mona testified at the reference She hearing. confirmed she was raped, conceded that defendant among those on the present premises, and However, admitted “pointing out” defendant as one of the rapists. Mona said, defendant, she never meant to accuse always who had treated her with She had respect. advised an in the that investigator 1972 case she did not want court. she appear acknowledged “might” She have told rape investigators this, testify she was “afraid to or they talk about Indeed, . . might come after or . kill Mona at the conceded [her] [her].” reference she hearing that was “afraid she now.” She declared wanted to forget only hazy event and now had recall. Mona said she now did not “really defendant had her raped but admitted she did not know. [think]”
Counsel’s investigation could have arguably complete, been more but we course, conclude it was sufficient. Of fear of plausible damaging rebuttal does not excuse all investigation mitigating background character and evidence, or of the prosecution when potential response. Only counsel is reasonably about informed the available evidence can she make an Frierson, informed tactical choice how to proceed. (See supra, 142, 166.) Cal.3d Counsel would have been well advised make some inquiry defendant’s and to background, conduct some about investigation *66 rebuttal, the strength of before damaging character and back- rejecting ground defense.
However,
the
of
range
constitutionally
is
adequate assistance
broad, and a court must
presumptive
accord
deference to counsel’s choices
time
about how to allocate available
and resources in his or her client’s
(Strickland
behalf.
Washington,
supra,
U.S. at
689-690
pp.
L.Ed.2d at
Counsel
pp. 694-695].)
may make reasonable and informed
decisions about how far to
lines
pursue particular
investigation.
Strategic
choices
upon
based
reasonable investigation are not incompetent simply
because the
less
investigation was
than exhaustive.
(Burger Kemp, supra,
gains were common at the time. $15,000 48Counsel was for a fee suggests, retained total for the three trials. Defendant however, that investigator advantage because counsel declined to hire an or take of court-fur investigative indigent nished are capital funds which available to defendants cases (§ 987.9), investigative presumed disagree. counsel’s own inadequate. efforts must be We performed inquiries personally assigned Counsel insisted that he all he would have to an investi
Here, more preliminary if should have done even counsel background a character and not to present decision his ultimate gation, assume could properly Cоunsel constitutionally supportable. defense by the Peo direct assertions from report, subsequent from the police back character and mitigating introduction of representative, ple’s revelations about damaging defendant to would expose evidence ground Indeed, unlikely that a it of rape. appears involvement in a incident prior Mona, “sympa of available investigation or further timely interview with After evidence, hearing decision. changed counsel’s thy” would have feared, that, counsel testimony, presentation our referee found as Mona’s re “likely” would have evidence background character and sympathetic We agree. the 1972 testimony rape. rebuttal about damaging sulted despite We Mona’s ambivalent also referee’s conclusion adopt retraction, “a sound tactical reason to avoided there still appears [have . . not one of While the victim now . believes was rape [defendant] issue]. those she nonetheless identified rape], involved [in [defendant] scene; be was appeared rapists; gang rape both afraid of [victims] visibly and the defendant aggravated injured; pled] guilty victims were [and events associated with the arising closely offense out of rape. have believed the victim was afraid of phase jury might well [de- .... Even if lying and others and for that reason fendant] not beyond could decide a reasonable doubt that committed the [defendant] be connection to and location would sufficient rape, people [defendant’s] tactical reason to out of the trial.” keep [penalty] [the incident]
Finally, note that the mitigating actually we evidence uncovered at the reference not hearing, sharply different though inconsequential, Indeed, from what counsel be might sug- assumed available. evidence stable, members, defendant, gested loving family whose other than were evidence, citizens. react such productive, law-abiding badly Juries can *67 it isolates the defendant “bad concluding as a apple.” circumstances, Under all the we conclude that counsel’s decision to avoid damaging by omitting evidence available character and “rape” background evidence the We range competence. reject was within reasonable defend- ant’s claim the the against that omission warrants collateral relief penalty judgment.
investigator, anything differently investigator. and that he would not have done with an capital supportive funding While counsel in a case is often best advised to make use of for eligible, the which client is the decision not to do so does not render counsel’s assistance constitutionally per deficient se.
D. Other omissions.
Also omitted from our O.S.C. amended were defendant’s claims on corpus habeas that trial counsel rendered ineffective assistance by (1) failing testimony to seek corroboration of defense on the activi prevalence gang area, ty in the La Puente crime (2) omitting forensic examination of the scene, and to failing document interviews with each of the or so questioned by witnesses the the nonpolice department. sheriff’s For most facts, to part, petitions allege the fail material specific favorable trial, and not at diligent defense which presented efforts would have uncovered. The new information that fails to undermine the supplied verdicts.
The supplemental petition attaches declarations defendant’s mother that a had Abbey sister attacked the house two gang only Street weeks raid, before the that police the attack heightened defendant’s concern for family’s safety, that murder weapon was in self-defense purchased attack, after most recent Abbey defendant was not Street living homicide, day on the of the and that needles on the were premises found diabetes suffered by defendant’s father. But directly these revelations either trial, contradict testimony given by defendant’s mother at or are cumulative Defendant, through evidence these or other presented witnesses. trial, who testified at guilt no expressed awareness of such recent circumstances, attack. Under these defendant has no facie stated case prima for collateral relief.
V. Miscellaneous Ineffective-assistance Claims In his brief on supplemental defendant some 34 appeal, summarily cites errors and alleged omissions counsel at the guilt, penalty pretrial, record, For the phases. part, most defendant supplies no citations to the our simply directing attention to “all the information the consolidated proceedings before this Court.” Defendant coun- repeats accusations that investigation sel’s of all aspects of case was He claims inadequate. evidence, incompetently counsel failed to seek suppression damaging case, weaknesses in the explore prosecution’s expose prosecution witness lie, police Acker’s agency motives proffer instructions pertinent defense, theory and present He mitigating penalty evidence. asserts that counsel’s tactical errors at affected phase the balance of He aggravation. out that counsel points no surrebuttal at the prepared penalty phase and admitted to had not realized he was entitled *68 to such argument. asserts,
In aggregate, the defendant counsel’s was so “shock- performance ingly “entirely deficient” that it to subject prosecution’s case to fail[ed] Amendment of Sixth This caused denial testing.” adversarial meaningful fundamental, of reversible as raise a presumption urges, rights so identified United (citing harm cannot be if cognizable even prejudice specific 657, 668, 104 S.Ct. L.Ed.2d 466 U.S. v. Cronic States 2039]). claims on of defendant’s already rejected several
We We have disagree. fail to remainder or misstate the record.49 exaggerate the merits. Others incompetence. claim of pervasive defendant’s support areas, record indi- in several counsel have done more Though might interpose appropriate shooting; cates he did the facts investigate witnesses, to “mean- in motions; subject particular, Acker prosecution cross-examination; guilt as a defense to as strong and ingful” present “character” evi- mitigating warranted. His hesitance to offer circumstances fears of supported plausible damaging dence at the was penalty phase rebuttal. trial,
Defendant, course, constitutionally perfect entitled to a was utterly or to ideal He fails to demonstrate a breakdown representation. that warranted. the adversarial so reversal process presumptively severe new of incom- any specific Nor does his attack establish instance “shotgun” No for appears that undermines confidence the outcome. basis petence disturbing judgment.
VI. Mandate ended, In trials had August long guilt after defendant’s and penalty Wil- he moved the trial to discover official file information about court Acker, liam him. jailhouse against informant who testified Defendant based that a number of yet-unknown his motion on recent revelations example, unjustified sepa application For defendant counsel’s successful but for claims guilt penalty juries jury “linger penalty rate left the sufficient evidence to harbor without ing guilt. separate jury imposed penalty doubt” of defendant’s But the which the death Moreover, noted, mistrial, application. previously pre the result of not counsel’s as counsel “lingering sented a substantial doubt” defense. counsel, gain,” no at both implies apparent Defendant also “for tactical failed trials However, request complete crucial instructions on reasonable unreasonable self-defense. trial, given guilt jury instructions on both theories were at the trial. At the justification (factor mitigation (f)) told consider defendant’s reasonable belief in moral “any [extenuating] (factor (k)). prejudice appears. other circumstance” No object appearance Defendant asserts counsel failed to before the defendant’s issue, “jailhouse Apparently jail blues.” did wore cloth- Counsel raise however. defendant ing days during guilt mix-up two court trial because of a about the whereabouts of his responded suggests problem, street clothes. The to the and the record no further court difficulty. *69 to fabricate testimo- Angeles County jail conspired
informants from the Los 1979-1988, the ny in criminal cases and that district during period attorney by early alerted to the of a scheme 1979. possibility perjury was information that Acker those among
Defendant no presented specific effect, urged, involved in the informant scandal. Defendant in simply veracity the scandal casts of all informants upon during doubt and raises that the concealed known or sus- period, suspicions prosecution in cases. defendant had filed no pected perjury particular Though petition court, for trial that the infor- suggested requested habeas corpus mation, voluntarily, which the authorities had declined to was a provide attack on the necessary judgment. collateral prerequisite The trial court With minor it apparently agreed. exceptions, ordered Counsel, Sheriff, County Attorney, Los District and the Attor- Angeles General, Acker, ney all their file materials about “limited to produce 1, discovery commencing January matters within the 1978 and end- period . . . ing testimony date of the Acker’s upon completion [defend- 29, second trial . . . or about . . . .” (on April 1981) ant’s] discovery mandate this court to overturn the order. People sought 1238, also While They (§ noticed from the order. lies appeal appeal subd. determined that considerations of (a)(5)),50 speed judicial we economy make the mandate vehicle proceeding preferable resolving a matter related to defendant’s automatic corpus and habeas pending appeal in this court. petitions
We therefore notified the parties considering we were issuance of pe- Fasteners, (see writ the first instance Palma v. U.S. Industrial remptory Inc. 893]), Cal.3d P.2d and we received on that issue from the and amici curiae.51We also briefing parties discovery transferred to this court the from the order Rules of appeal (Cal. Court, rules deferred on the and consolidated the 27), briefing appeal, mandate automatic habeas proceeding corpus with defendant’s appeal already here. proceeding pending
We now conclude that a writ should issue. The trial peremptory jurisdiction discovery court lacked to order “free-floating” postjudgment when no criminal then before it. proceeding pending part, (a), may pertinent provides: appeal 50In section subdivision “An be taken following: [j[] (5) judgment, affecting people from of the . . . An order made after rights people of the . . . .” substantial Legal Amicus curiae briefs were filed the Criminal Justice Foundation and California Lawyers. Attorneys Defense for Criminal Association of Criminal Justice/National
1257 247 217 (1990) Cal.App.3d Ainsworth v. recently explained People As a to entertain authority] postjudg “a trial court 175], Cal.;Rptr. [lacks [266 any then pending proceeding which is unrelated discovery ment motion noted, .” Court of Appeal . . . As the (P.251.) court “[t]he before [that] motion, any As other authority with simple. lack of is reason such to an remedy. ancillary It is right an or discovery independent motion is final, there is has become judgment or After the action ongoing proceeding. discovery may motion attach.” the trial court to which nothing pending 313, 317 189 Cal.App.2d v. Burks (Ibid.; (1961) see also People [11 64]; 112 120 P.2d (1952) v. 200]; Cal.App.2d Cal.Rptr. People Sparks [246 929, Cal.Rptr. 15].) M. 81 934 (1978) cf. Donald J. v. Evna Cal.App.3d [147 247, Ainsworth, discovery 217 motion was made supra, In Cal.App.3d our judgment appeal criminal on issued after we had affirmed the where, here, as equally reasoning remittitur. But Ainsworth's applies is final in the trial remains undecided. Once a criminal appeal proceeding court, strictly over the case is subsequent jurisdiction that court’s direct 1193, 1265; by by (See, e.g., limited statute and remittitur. appellate §§ 849, Proc., 916, Rittger 55 Cal.2d (a); (1961) Civ. subd. v. Code § 406, 852 362 P.2d remains in the trial 38].) Nothing pending Cal.Rptr. [13 discovery authority may court to which attach. its heavily Wisely Superior (1985) Defendant v. Court 175 relies merits, Wisely, its 893], 267 Cal. but whatever Cal.App.3d Rptr [220 trial; There granted the trial court the defendant new while inapposite. discovery. the defendant moved for further People’s appeal pending, motion, jurisdiction. trial denied the The Court of citing court lack reversed, deeming fundamentally deny discovery it unfair to Appeal “pre 270; to an trial.” see also Echavarria v. paratory anticipated (P. Superi new 467, or (1979) Court 94 469-470 Cal.App.3d Cal.Rptr. [156 527] [court discovery jurisdiction incompetency retains of defendant’s during period Here, order, however, stand there no new-trial other trial].) pending or matter, discovery to which the court’s could attach. authority
Defendant invokes Code of Civil Procedure section grants which every necessary carry By court all means into effect.52 its jurisdiction its terms, however, only operates provision section 187 where some other authority in judicial (Ainsworth, law confers instance. 217 supra, first is, 1872, provides: jurisdiction adopted “When Code Civil Procedure section code, officer, judicial necessary or this on a court or all the means the constitution conferred given; carry jurisdiction, if it into effect are also and in the exercise of this the course of statute, specifically pointed process proceeding be not out the code or suitable may proceeding may adopted appear spirit most to the of this be which conformable mode code.” 254-255; Truck
Cal.App.3d see Sales Co. Justice’s Court pp. Traffic (1923) 306].) 192 Cal. P. Such case here. is not the (Compare People Sequiera Cal.App.3d 249] [invok- *71 1567, ing which arguably grants superior any “necessary” a court power § before it another bring prisoner jurisdiction].) from jurisdiction Defendant claims the court’s from superior arose the inher- However, judicial ent to order in power discovery aid of fair criminal trials. observed, as Ainsworth in cases nothing right addressing pretrial 83, discovery e.g., Brady v. 373 87 (see, Maryland (1963) U.S. L.Ed.2d [10 215, 218, 658, 83 1194]; S.Ct. v. Memro 38 People (1985) Cal.3d 677 [214 832, v. Cal.Rptr. 446]; 700 P.2d Ballard 64 Superior (1966) Court Cal.2d 159, 302, 838, 167 Cal.Rptr. 410 P.2d 18 1416]) suggests A.L.R.3d [49 similar continue rights for defense has been opportunity provided, after entered, the conviction has been of innocence has been presumption overcome.
Indeed, the Constitution not federal does confer a to crimi general right 545, nal discovery v. (Weatherford Bursey (1977) 429 U.S. 549 L.Ed.2d [51 30, 36, 837]) 97 S.Ct. and does not mandate the full panoply pretrial rights collateral efforts to a final (Pennsylvania overturn conviction 551, 539, Finley 546, U.S. (1987) 481 556 L.Ed.2d S.Ct. 107 We 1990]). [95 area, see no justification for own expanding our in this holdings and we reject defendant’s contention. reasons,
For similar we dismiss we suggestion that ourselves should order or discovery approve requested under current circumstances. On direct may we take and find appeal, evidence facts in limited circumstances. Const., VI, Proc., (Cal. Court, §11; 909; art Code Civ. Cal. Rules of rule § However, 23.) our does appellate function not providing party include with discovery that might judgment undermine (See under review. Coo- 627, 766, per Leslie Salt Co. (1969) Cal.2d Cal.Rptr. P.2d [75 406].) petitions related for habeas this court also corpus provide
inappropriate discovery vehicle. Whatever role court-ordered discovery might a habеas properly play the bare of a claim corpus proceeding, filing relief unlimited postconviction cannot trigger right discovery. A verified, habeas must be and must corpus petition “prima state a facie case” is, which, true, for relief. That it must if specific set forth facts would require Any issuance of writ. that does meet petition these standards denied, summarily must be creates and it no cause or proceeding which 2, discovery would confer jurisdiction. (§§ 1475; subds. see re In 870, 875, 4; Hochberg, 2 Cal. 3d fn. In re Swain supra, (1949) Cal.2d 877, 882-887 120 Cal.App.3d v. Pacini 793]; P.2d cf. 304 820].) recently most petitions, corpus habeas explained, pending As we have gave case that Acker state a facie prima do not supplemented evi- material undisclosed has testimony, prosecution or that the perjured Even government agent. or his status as a veracity on Acker’s bearing dence an amendment or as proceeding in this mandate were we treat record most, file, same.53At the result already petitions to the supplement 1979-1988, various resi- during period are indications that there new successful schemes for County jail Los Angeles developed dents of the inmates, and that these practices other fabricating confessions jailhouse *72 However, nothing authorities.54 or even the ignored encouraged were a in the schemes before us identifies Acker as participant the materials files that any prosecution’s Nor is there indication alleged. specific testimony. Acker’s yield substantially that undermines would information upon of cast doubt that the revelations abuse suggests general Defendant However, complex- the size and testimony jail. given all from the informant is system, there no ity facility,55 county’s justice that and of the criminal for such an all-inclusive inference. current basis a him to state requiring Defendant that we create “Catch-22” urges may any right claim invoke to facts his specific supporting before case, facie he as- discovery. prima Information crucial to a postjudgment serts, may only except by a disclose it unwilling be available from source order. court
However, is to “fish” official files right through there no postconviction or to confirm mere judgment, for belated of attack on the grounds 53 incomplete People’s petition constituted an rec The exhibits attached to the for mandate discovery aug proceedings request. trial Defendant moved ord of court on court, including proffered that the trial ment the record to include all materials were before Court, (Cal. 12(a).) Missing portions rule the trial court record have now exhibits. Rules of us, formally grant augment. and we the motion to been transmitted County Jury Angeles apparently has conducted the most ex 54The 1989-1990 Los Grand jury’s judicial grand take notice of the investigation so far. Defendant asks that we tensive grant request report, posed objection. no We therefore 153-page and the have 452, Code, 459.) judicial (c), (d), (Evid. notice. subds. §§ County Angeles jail largest grand jury reports “is believed to be the cus The that Los 8,600 facility type in its in the free Its 2 downtown branches house some todial world.” day. journey through given persons stages of their on These are at various mates system. justice system according complex segregated are to a classification In criminal risks, inmates, formants, high-profile prisoners, defend escape condemned violent or suicidal affiliates, cases, ants, custody gang disciplinary protective others in need of are hostile 2,000 day, general inmates separated population and from each other. Each some from the County (Rep. of L.A. Grand transported appearances. are to and court the 1989-1990 from 45-49.) Jury (hereafter Jury Report), pp. Grand a hope may that basis for collateral relief exist. The initial
speculation
beyond
burden of
proving guilt
reasonable doubt
on the prosecution,
and the
panoply
rights accorded an accused
person prior
his convic-
tion
that he
supports
presumption
is innocent. Different considerations
however, to
final
apply,
collateral review of a
criminal judgment.
pur-
For
attack,
truth,
of collateral
all
poses
favor the
presumptions
accuracy, and
fairness of
sentence;
the conviction and
thus must undertake the
defendant
of overturning
Society’s
burden
them.
the finality
interest in
of criminal
demands,
so
proceedings
thereby
is not
process
due
offended.
(People
Ainsworth, supra, 217
Pennsylvania
Finley,
see
Cal.App.3d
p.257;
Defendant urges the informant scandal presents unique situation relaxation of requires the normal rules governing collateral proceed- He ings. notes indications *73 that authorities were of long aware credible fabricated, testimony claims that inmate but being investigate, failed and even decided centralize informant might records because this ease defense efforts such to discover perjury. (See, e.g., Jury Grand Rep., Moreover, asserts, supra, pp. 97-122.) the have defendant authorities reneged on more recent promises cooperate the with defense bar “appropriate” proceedings to inspect informant records. In defendant’s view, these facts that truth suggest in individual cases never will come to light except through aggressive judicial intervention.
Even if defendant’s accusations are true—a question we do not address— we are not that our persuaded discovery jurisdiction is properly invoked. As noted, have we habeas an corpus extraordinary, remedy limited a against fair presumptively and valid final It is for judgment. investigat- not device claims, ing possible but means for vindicating actual claims. Defendant facts, made has no concrete allegations, supported that Acker specific Hence, implicated the informant scandal. no ground asserts discovery.56 habeas-corpus-based course,
Of prosecution duty has a well-established to disclose defense, information materially favorable to even absent a request 56Acceptance of contrary arguments defendant’s consequences. would In have enormous effect, proposes every defendant corpus that the courts petition entertain habeas chal that lenges 1979-1988, County Angeles jail during period use of informant from the Los discovery prosecutorial every of law enforcement files be ordered in such case. 150, L.Ed.2d 405 U.S. (1972) States Giglio v. United [31 therefor. (E.g., 83, 87 373 U.S. 104, 108, Maryland, supra, 763]; Brady S.Ct. “ Morris, . trial . .At 30.) 46 Cal.3d 218]; supra, People L.Ed.2d but after due process, of duty requirements is enforced [even] this inform of his officeto by the ethics ... is bound conviction the prosecutor doubt upon . . information that casts authority of . the appropriate 424 U.S. v. Pachtman (Imbler correctness the conviction.” 5-220, 128, 141, Rules also rule 984]; 96 S.Ct. see fn. 25 L.Ed.2d DR 7- Prof. Bar; Responsibility, ABA Model Code Prof. Conduct of State Conduct, rule 7-13; 3.8(d).) Rules Prof. EC ABA Model 103(B), lawyers have such information if the People’s We and assume that expect case, Statutory fully. it they any promptly or will disclose in this other may in this case also be assistance not employed and remedies procedures (See, Gov. e.g., information. official disclosure compelling pertinent Code, extrajudicial retains all the usual 6250 et And defendant seq.) § means of investigating suspicions. by ordering jurisdiction postcon-
We hold that the trial court exceeded its before discovery proceeding pending viction in the absence of may ratify court. We further that we not ourselves order conclude habeas discovery, or under of the appeal, auspices either on direct proposed function. Discovery matter here. is not of the corpus part appellate pending Moreover, to issues will not lie in habeas with discovery corpus respect relief. Defendant which the fails to state a facie case for upon petition prima testimony has not stated facie for new into prima grounds inquiry of mandamus William Acker. are therefore entitled to writ they seek. *74 Disposition
VII. entirety. The for The affirmed in its judgment appeal petitions on is issue, directing of habeas are Let a writ mandate corpus peremptory denied. order, August to vacate its dated Angeles County the Court of Los Superior v. discovery in the action entitled granting postjudgment Gonzalez, Action No. A524625.
Lucas, Panelli, Kennard, J., J., J., J., Arabian, concurred. C. and Although I ARABIAN, J., fully in Justice Eagleson’s concur Concurring. I majority and am constrained to state thorough opinion, well reasoned of homemade scale my views use separately concerning prosecutor’s basis of a dissent during penalty argument. principal This issue phase by Justice Broussard. that, context,
I agree majority’s with the the jury conclusion viewed not to the of was misled as its scope sentencing discretion. Brown (People 512, 544, (1985) fn. 17 Cal.Rptr. 440].) Cal.3d 709 P.2d [220 use of scale and the prosecutor’s remarks could not accompanying reasonably jury have confused a otherwise informed that counsel’s remarks evidence, not were that process the deliberative involved a “weighing” factors, rather than a “counting” of relevant and the itself was to values to and assign those factors the sentence it impose “just deemed and fair.” however, is not
It scale enough, simply to dismiss the illustration as evidence, faith, harmless. The use such demonstrative even in good system strikes at the core which principles on our is founded. Fair and play justice substantial are the articles of faith to which all involved administration of criminal justice subscribe and to all are which constitu- tionally bound. Prosecutorial tactics such as those exhibited here push against very limits of behavior under this rubric. While I am acceptable crossed, persuaded that the line I am certain equally that this brim. court’s tolerance such tactics its nears MOSK, J., Concurring and Insofar as Dissenting. majority affirm the on judgment appeal convicting defendant Sheriff Deputy murder firearm, review, Jack Williams with use of I personal concur. After I have found no reversible error bearing on issue.
In all other
I
respects,
dissent. Less than persuasive
majority’s
is the
analysis as to
rеst of
the judgment
appeal,
on
defendant’s
petitions
habeas
corpus,
petition
in mandate.
People’s
Especially problematic
is their discussion of
Brown error.
Brown
(People
Cal.3d
440],
709 P.2d
revd.
other
sub nom.
grounds
Califor-
934, 941,
nia v. Brown (1987)
I write separately, only the address with the question dealing elements of the offense of officer peace assault and the special circumstance of officer murder. peace with, of,
Defendant charged was and convicted degree the first murder of Williams, 189, Sheriff Deputy under Jack Penal Code sections the peace officer assault of Deputy Sheriff Robert under former Esquivel, 245, 1139, 152.5, Penal Code section ch. (b) (Stats. subdivision § found true It alleged 245(b)). former section (hereafter 5106) p. 12022.5, used a firearm he personally section of Penal Code that in violation true, as the and found alleged It was also the of each offense. in commission death, of the establishing eligibility circumstance sole special Williams within Deputy murder against officer peace he committed that 190.2, section (hereafter (a)(7) subdivision of Penal Code section meaning to death. He sentenced subsequently 190.2(a)(7)). con- validity peace-officer-assault of both the
Defendant now attacks Having finding. peace-officer-murder special-circumstance viction and the is the view that his attack successful. closely, matter I am of considered the “Every who part person in relevant 245(b) Former section provided by any means deadly weapon an assault with a or instrument commits of a officer likely bodily injury upon peace produce great person , victim is reasonably . . should know that such . and who knows or duties, such peace . . . in of his when engaged performance officer peace punished ... his duties shall be engaged performance is in the officer ch. (Stats. the state for” various terms. imprisonment prison 152.5, italics p.5106, added.) § as a circumstance estab- 190.2(a)(7) following special
Section defines the , who, . . . while eligibility: death “The victim was a officer lishing peace engaged in the his or her intentional- performance course duties was killed, reasonably that the ly and the defendant knew or should have known victim was a of his or her duties peace engaged officer the performance . . . .” (Italics added.) circumstance of
Both offense of officer assault and the peace special lawfully as is officer murder have one their elements that officer peace engaged performance of his duties. noted, language
As both the offense and circumstance contain special is in the their to situations in which the officer defining scope engaged of his duties. Both were enacted after our unanimous decision performance In 33], 450 P.2d Curtis 70 Cal.2d Curtis, been construed recognized language long we that such had expressly (Id. by the courts of this state to on the officer’s require part. conduct lawful And as to that construction. 354-356.) just we adhered pp. expressly, as The basis for is referred to the “Curtis (Ibid.) this interpretation—which rule”—is be to be in the premise engaged officer cannot deemed is in fact of his duties when he commits an act or omission that performance duties, conduct obviously, unlawful: his lawful conduct and require lawful “ only. ibid.) rule of established that where (See law well ‘[T]he *76 1264 construed,
[legislative body] already judicially uses terms “the presumption is almost irresistible it used them the and technical sense precise ’ ” been which had them the at placed upon (Id. courts.” p. quoting City Long 11 Beach v. Marshall Cal.2d 362], P.2d [82 of City in turn quoting Long Payne Beach v. (1935) Cal.2d 191 of Here, P.2d 305].) is in fact “irresistible.” presumption
The majority severely limit the a lawfully-engaged-in-duty element and as consequence greatly liability criminal expand punishment. Their rea- soning is the Curtis rule too broad and at its boundary constitutes redefined, They dictum. hold that under rule as a officer is peace lawful- ly in the engaged performance his duties “correct[ly] whenever he is “facially a servi[ng]” valid” warrant—even if his conduct is in fact unlaw- ante, ful. (Maj. opn., p. 1222.) at
The majority err. I cannot that the Curtis rule is too agree broad. In years held; past no court has so they have all It respected stare decisis. eminently seems sound to declare that a peace officer is in the engaged of his performance beyond duties when he goes law. Nor can I agree boundary Indeed, that at its the rule constitutes dictum. v. Hen- derson (1976) 58 353-359 Cal.App.3d 844], the court clearly, albeit impliedly, held—contrary to the majority’s suggestion—that lawfully duties, officer is not peace in the engaged performance even warrant, though correctly facially serving if valid his conduct is in fact There, unlawful. the officers in correctly facially had question executed valid warrant that authorized them to enter search a residence without first with the complying so-called “knock-notice” requirements Penal That, Code however, section 1531. (See Cal.App.3d at pp. 353-356.) was simply (See insufficient. id. at 358.) Because the so-called “no p. knock” void, authorization was determined be to the “knock-no- exception tice” was requirements necessary. The be (Ibid.) officers’ conduct had to lawful in actuality order to be within the their performance of duties. (See ibid.)
For academic present merely it is purposes musing idle as to whether or not the majority’s criticism of the Curtis rule has any theoretical merit. today, Until the rule firmly established unquestioned. (See general- 1ly Witkin & Epstein, (2d Cal. Criminal 1988) Against Law éd. Crimes Person, 438, 439, 494-495; id. pp. (1990 pocket supp.) p. [surveying §§ the state of the law on the as point].) majority themselves concede much, ante, as describing “long-standing.” rule (Maj. opn., p. 1217.) It must therefore be presumed—and presumption is unrebutted—that the rule recognized by statutory provisions those who drafted the defining the offense of officer assault peace and the circumstance special *77 the presump- again, also be presumed—and murder. It must officer peace and conse- by the drafters rule accepted is the was tion unrebutted—that had in fact been Certainly, if it measures. into their incorporated quently indication, clear But no given. have been a clear indication would rejected, otherwise, anywhere apparent. is or event, lawfully-engaged-in-duty limitation of the majority’s
In the liability punish- of criminal expansion and the consequent element law, ment—which, not have the could of the well-settled state of in view defendant’s, omissions, like effect on acts or without been foreseen—are judicial enlarge- unforeseeable today. were committed before “[A]n statute, an like retroactively, precisely operates of a criminal applied ment I, 10, An ex law, post forbids. such as Art. of the Constitution ex post § facto the an action done before has defined ... as one ‘that makes law been facto done, law, criminal; and of the and which was innocent when passing crime, it action,’ greater it aggravates or makes than such or ‘that a punishes was, Ex by barred legislature If a state is when committed.’ [Citation.] law, a follow that a State Facto such it must passing Post Clause from achieving from is the Due Process Clause Supreme Court barred (Bouie (1964) Columbia City result construction.” judicial same of omitted, 894, 899-900, 1697], fn. 84 S.Ct. U.S. 353-354 L.Ed.2d Marks v. States U.S. original; italics accord United 260, 265, 990].) L.Ed.2d 97 S.Ct. that the instructions I turn now to the case at bar. Defendant contends and the special of officer assault given by peace court on offense circumstance officer murder were erroneous. peace of
In who commits assault charge, “Every person its court declared: in the deadly a a officer weapon upon peace engaged with person should reasonably of his and who knows or know performance duties his is duties engaged such a officer and is person peace performance guilty of a crime.” the first you The on: “If find the defendant of murder of guilty court went if the murder committed under degree, you must then determine officer, circumstance, wit, Jack following special killing peace Williams, who, duties engaged performance while the course of the have reasonably should intentionally killed and said defendant knew victim, Williams, in the engaged officer known that such Jack was peace of his duties.” performance duties,’ as ‘in of his “The phrase performance court concluded: instructions, act or conduct while Any
used in these means: lawful [fl] *78 in the of engaged security community maintenance the of the peace or wit, in crime; the or investigation of the of search prevention serving a warrant.” is, course,
It of error for court to remove of an (see, element offense 510, 39, v. e.g., Sandstrom 442 (1979) Montana U.S. 520-523 L.Ed.2d [61 48-50, 99 S.Ct. 2450]) or a special (see, circumstance v. Garcia e.g., People 539, 265, 36 (1984) Cal.3d 547 684 P.2d from Cal.Rptr. 826]) the [205 jury’s consideration means of an instruction either omits such ele- entirely ment merely or a mandatory contains conclusive of its presumption presence. did,
Defendant claims the instructing as it the court effectively removed the element whether the officer peace question lawfully engaged the of performance his duties.
When we consider a such point, present, as that turns on the meaning of an instruction the elements of an offense defining (e.g., Sandstrom Montana, 514, 442 U.S. at supra, pp. 517 or pp. 44-47]) L.Ed.2d [61 471, special circumstance (e.g., People (1988) Warren Cal.3d 487 [247 172, is, Cal.Rptr. 218]), P.2d the crucial question juror could have reasonably mind, understood the words as the my defendant asserts? To answer here affirmative. must be
A juror reasonably would have understood the instructions to challenged declare that Williams and Deputies Esquivel their were colleagues lawfully in the engaged their as performance of duties a matter law: “The of duties,’ instructions, ‘in phrase of performance as used in these Any means: lawful act or conduct while engaged the maintenance of []J] security peace community of the or in the investigation preven- wit, crime; tion of serving search warrant.” (Italics added.)
So interpreted, the instructions must be deemed to have raisеd a manda- tory conclusive that the presumption lawfully officers were at the acting time relevant here.
But the issue of the lawfulness vel non of the officers’ conduct was fact vigorously contested. it Specifically, was whether officers were disputed lawfully acting they when broke into the Street Abbey residence to execute the warrant to search for narcotics. The presented evidence and argument to the affirmative. Defendant presented argument evidence and the negative.
Defendant next contends that error validity undermines the conviction for assault peace officer and the circumstance special finding peace officer murder. mandatory conclusive presumption involving
An instructional error
aof
conviction
automatically
the reversal
require
of an element does
471-474,
L.Ed.2d
579-582
v. Clark
U.S.
(1986)
Rose
(e.g.,
finding (see,
of a
circumstance
setting
special
or the
aside
3101])
106 S.Ct.
45 Cal.3d
410-415
v. Odle
e.g., People
Chap
analysis under
test
to harmless-error
184]),
subject
P.2d
but
*79
824, L.Ed.2d
S.Ct.
Under “before Chapman, less, beyond a harmless the court able to declare a belief that it was must be “burden 711].) at at The p. U.S. L.Ed.2d (386 p. reasonable doubt.” [17 error, “Certainly consti as to rests on the proof” prejudice government. error, by it . . . someone than the person prejudiced tutional casts on other beneficiary of a constitu to that it harmless .... a burden show [T]he the error beyond a reasonable doubt that required] prove tional error to [is (Ibid. the verdict obtained.” complained of did not contribute to L.Ed.2d p. 710].) Carella v. As Justice in his in concurring opinion Scalia stated California 2419], L.Ed.2d 109 S.Ct. “the harmless-error
(1989) 491 U.S. is analysis mandatory presumption in a conclusive applicable assessing analysis. In usual case the harm- wholly unlike the form of such the typical of ‘the as a lessness determination consideration trial record requires whole,’ by fact [citation], improp- in order to decide whether the supported erly overwhelmingly by established admitted evidence was event evidence, be other Such an would error expansive inquiry [citations]. here .... conclusive mandatory “The Court has the use of disapproved presump- ‘ merely overriding presumption
tions not it the because with “conflicts] accused,”’ [citation], but also innocence with which the law endows ‘it in a criminal case because function” which fact-finding “invade[s] [the] a right solely jury,’ the law constitutional assigns [citation]. inway which law trial embodies ‘a about jury profound judgment It is a structural justice should be enforced and administered.’ [Citation.] a fundamental decision about exercise guarantee ‘reflects] life over the powers official reluctance entrust power—a plenary A a liberty judge group judges.’ of the citizen to one [Citation.] even may assuredly guarantee defendant insist observance of this upon as him is to establish against overwhelming guilt when the evidence so words, .... not beyond question a reasonable doubt In other ‘the record, has may guilt out of a but whether been found guilt spelt whether be criminal jury a and standards by appropriate to the according procedure trials.’ ‘Findings by judge made a cannot cure deficiencies [Citation.] jury’s findings guilt as to or innocence of a defendant from the resulting failure court’s to instruct it to find an element of crime.’ [Citation.] necessarily “These principles availability circumscribe of harmless- analysis error been jury when has instructed to a conclusive apply pre- . . . sumption. nothing For instruction would have directed [such an] it, jury, or even permitted to consider and evidence in apply th[e] its reaching verdict. And the not problem appellate would be cured court’s determination that unmistakably the record evidence established guilt, for that would of fact represent by judges, finding .... error such the wrong entity judged a case is that ‘[T]he defendant guilty.’ [Citation.]
“Four Members of the
as
Court concluded much in Connecticut v. John-
son,
“Another basis for a finding instruction harmless conclusive-presumption . . following be found . : When facts predicate [could situation] instruction, relied in the upon or other facts found necessarily jury, closely are so related to the ultimate be rational presumed fact to that no jury fact, could find those facts also that finding making without ultimate findings those is functionally finding the element equivalent required reasonable ‘beyond it is harmless because error The be presumed. necessary support doubt,’ the facts found jury that the [citation], 263, 267-273 U.S. California, supra, 491 [105 (Carella conviction.” 2421-2423], original italics 223-227, S.Ct. at pp. pp. L.Ed.2d at Scalia, J.).) (conc. opn. above, conclude compelled I am stated
Applying principles I cannot “declare simply here was prejudicial. error the instructional v. Cali (Chapman doubt.” beyond reasonable it was harmless belief that Certainly, 711].) L.Ed.2d p. 386 U.S. at fornia, supra, p. the issue. “burden of proof” their
have not carried
mandatory
stated,
conclusive
an impermissible
As
the instructions raised
colleagues
their
were
Esquivel
Williams
Deputies
presumption
duties.
of their
lawfully
performance
in the
engaged
can
court
reviewing
situations’
‘the
is not one of “those ‘rare
when
This
ver
jury’s
role in the
did not play
be confident that
error
an]
[such
p.
L.Ed.2d at
491 U.S. at
California,
p.
(Carella
supra,
dict.’”
Scalia,
J.).)
(conc. opn.
Nor is the “concession” rationale the officers’ conduct. ed the lawfulness of jury not rationale does
Finally, “necessary apply. the implication” conclusion that the officers did not find facts that entailed the logically duties. lawfully were in the of their engaged performance errone- prejudicially court’s instructions were Accordingly, because the ous, aside the I officer assault and set peace would reverse the conviction for the Having murder. reversed officer special finding peace circumstance finding. conviction, personal-use-of-a-firearm I the dependent would vacate is the sole finding, which aside the circumstance having special And set case, sentence of I also vacate the in this would eligibility basis for death death. conclusion, judgment appeal the affirming I concur although
In the personal Williams with Deputy murder of convicting defendant firearm, I dissent. respects in all other use of 1270
BROUSSARD, I dissent. J. view, my First,
In majority opinion indefensible in two respects. v. People Gonzalez the majority improperly uphold penalty judg the death ment in the face aof record demonstrating the clearest violation of perhaps set out in v. principles People Brown 512 Cal.3d Second, P.2d that has ever come before this court. 440] the majority in the opinion consolidated matters of v. People Court Superior (Gonzalez) and In re Gonzalez effectively frustrate defendant’s attempt discover documents possession County of Los Angeles which may key demonstrate that a witness prosecution committed perjury.
I. Brown, Defendant in supra, Cal.3d challenged the const itutionality of the jury instructions under the 1978 law. ulti Although we contention, mately rejected his we observed that an tracking instruction statute, here, language of such as given ambiguous, room for some confusion as to the jury’s determining role” in “leave[s] appropriate penalty. (Brown, 3d supra, Cal. fn. p. 17.) In view of the dangers posed this instructional ambiguity, we said that we would examine each case tried to Brown prior “on its own merits determine whether, context, may sentencer have been misled to defendant’s prejudice about the of its scope sentencing discretion under the law.” We (Ibid.) most, have undertaken this review in numerous cases. In only clue as to whether the jury may have been misled is the arguments of counsel, case, analysis, and our as it must in this has focused on whether counsel put before the incorrect interpretation of the instruction. While prosecutorial “are arguments be judged having as the same force anas instruction from the court” (Boyde (1990) 494 U.S. California *82 370,_ 316, 331, 1190, L.Ed.2d 110 S.Ct. when the instruction 1200]), [108 from the may court is ambiguous we have no choice but to the look to argument to discern how that instruction likely the perceived jury.1 1222,
In v. 849, Allen (1986) 42 Cal.3d 1276-1277 P.2d 115], 729 we that: explained “Our concern in Brown was that the majority according Boyde California, 370, 1The note that to v. supra, “prosecuto 494 U.S. commentary given rial weight analyzing should not be jury undue how a reasonable under capital sentencing stood lightly instructions” and “a prosecutor ‘court should not infer that a ambiguous ante, intends an remark to damaging meaning (Maj. opn., have its mоst ....”’ p. added.) language fn. italics deciding This kind of help is no cases. Courts or, issue, give weight should never anything, “undue” to when matters of life and death are at that, “lightly.” draw problem majority opinion among inferences But the with the is from the statements, possible interpretations prosecutor’s consistently they of the adopt the most in one, nocuous even interpretation. when context that is the less reasonable lead the ways in two interrelated statutory might instruction unadorned First, we pointed discretion and responsibility, its jury [fl] to misapprehend weighing nature of the about the be confused jury might the out that for a is a metaphor “weighing” word As we observed: process. ‘[T]he con- The word of precise description. is incapable nature process which calls for certainly not one which but process, balancing notes a mental “scale,” imaginary side of of factors each counting mere mechanical is free juror of them. Each to arbitrary “weights” assignment or the to he deems appropriate value sympathetic moral or assign whatever to consider.’ permitted factors is [Citation.] and all of the various each instruction’s Second, unadorned in Brown that the concerned we were [1|] con- if . . a sentence death . shall impose ‘the trier of fact phrase, [it] circum- mitigating outweigh that the circumstances aggravating cludes stances,’ it called on the ultimate question as to could mislead Although quoted impose. which sentence to answer in determining ‘the determine whether juror require (i) be understood to phrase could circumstances’ without outweigh mitigating circumstances aggravating sentence, then and view as to the regard juror’s appropriate to the personal if even outweighs mitigation if aggravation a sentence of death (ii) to impose sentence under believe death is the juror appropriate does not personally circumstances, was not in Brown that the statute concluded all the we not, to, in that fashion.”2 should be interpreted intended Court, of the United States Supreme recent five-to-four decisions Two Pennsylvania v. Blystone 494 U.S. Boyde California, supra, 1078], that brown’s suggest U.S. L.Ed.2d 110 S.Ct. States by the United law was not compelled the 1978 interpretation decisions, brief parties light requested In of those we Constitution. in People decision we should reconsider our argue whether question however, reflection, Brown, we decid- 512. further Upon Cal.3d supra, Brown, and this majority it and both the necessary ed was not to reconsider analysis. follow the Brown dissenting opinion arising in cases under to serve an essential function Brown continues prose- of that law ambiguous wording permits death law. The to believe designed jurors to lead logic cutors to weave a web of false punish- verdict whether or not that of the law a death requires structure guards law against of the 1978 interpretation ment Brown’s appropriate. *83 under a verdict to ensure that reasoning helps penalty such mistaken determination, rather than is the result of a considered moral the law Thus of moral considerations. process mechanical or arithmetical devoid court, in having paraphrased, or endorsed language quoted, this been 2This is familiar to years 20 since Brown was filed. over cases in the 5 1272 jury Brown,
the present (CALJIC 8.88), instructions No. based continue to govern trial of cases in capital California.
I Brown, do not believe that we can adhere to the established in principles 512, 40 supra, Cal.3d without reversing in the penalty judgment case before In my us. is opinion, flagrant this one of the most of Brown examples error to come before this court. Interpreting ambiguous instructions court, given by the trial the prosecutor jury: (1) they told the could deter- penalty by mine the the arithmetical of process assigning arbitrary weights to aggravating and mitigating factors and then in adding each weights column; (2) inapplicable mitigating factors must be in placed the column for factors, aggravation and assigned (3) in weight; weighing jurors should not defendant, consider is whether death the appropriate penalty how case compares to other cases in may which death have been more If appropriate. preserve we are to Brown as doctrine instead of a living exhibit, museum we must reverse this verdict.
Brown first warned of an which interpretation would call “for a mere mechanical of ‘scale,’ factors on counting each side of the imaginary or the arbitrary assignment ‘weights' to them.”3 (Brown, supra, Cal.3d of of 541, at p. italics have added.) yet We encountered a case in which anyone suggested jury that the decide the penalty “counting” factors side, on each although the prosecutor People Hamilton Cal.3d 1181-1182 Cal.Rptr. 774 P.2d came 730], close. We have encountered one case which the prosecutor that a suggested verdict could be arbitrary reached assignment of weights numerical to the side, factors on each unanimously and we argument. condemned that In Bittaker (1989) 48 Cal.3d 774 P.2d 659], the prosecutor told the “if we were give weight to actual pounds and ounces to the aggravating circumstances and the mitigating circumstances, if the aggravating weighed circumstances and one pounds ounce and the mitigating circumstances weighed pounds, you then would duty be bound to a death .... If impose penalty you were [^f] it, give you if percentage said 50.1 percent of the pointed evidence aggravating circumstances, circumstances 49.9 pointed mitigating you’d then still impose have to a sentence of death.” We found this argu erroneous, ment and inconsistent with precedent, “because it depicts weighing process as one involving the application an arithmetical factors, formula involving assignment weights to each of the followed 3I note also Brown’s assertion required jurors that a statute would be unconstitutional if “it to render a death verdict (40 p. 540.) on the basis of some arithmetical formula.” Cal.3d at Whether or not this statement correct light as matter constitutional the Su law decisions, preme Court’s recent it makes clear Brown’s view that the California statute should interpreted not be to base the determination on an arithmetical formula. *84 the balance.” to determine column entries in each of the by an addition (Ibid.) reviewing at bar. After in the case said prosecutor
Compare what case, the jury: he told facts of the not my It’s garage. I had something That’s a little scale.
“I—I built I’m see, you concept, a give idea is to can but the you as very professional, evidence take the first to job, . . . got an idea . You’ve you giving [fl] or is it mitigating? it aggravating it on? Is go [fl] which side does and decide much decide how that, job, the next to you then have you decide After to job. got You have your . it? . . That am I to to going give weight [fl] deci- your That’s weight. of A little a lot weight, to them. weight give weight.” it equal it schematically giving I couldn’t do without So sion. or mitigating—misla- as aggravating the various factors After classifying closing in his prosecutor be seen later—the many of them as will beling factor: assigned to be each weight to the argument turned column have another you got for aggravation; “You have one column got You are your job juror. as a say doing are you—you for and let’s mitigation to them .... they give much to weight fit and how trying to decide where 10, 1 to a number of to way. you can say give Let’s do it this Let’s [fl] these. 1 10. 10 for each one of going What are of the crime? we The nature killing?
“How about the mean, .... On scale That was planned I that was cold. consider that? more be, much get number 9. Couldn’t say, that would let’s that, it done. the manner in which was than aggravating indicated, “Next, great bodily I a conviction violence. As have prior ‘Well, evidence says, but there’s no Mr. injury, Bencangey [defense counsel] Well, actually bodily that’s—that was great injury.’ that he did of the crime of of the crime of. He was convicted He was convicted point. friends, mean, many how many you many your battery. I how or how mean, I that does those your things? have convicted of both relatives been activity. violent criminal has had is a violent person show that person . Now, be a ... maybe that would on a scale of 1 Now, give disturbance. Let’s evidence of mental have no “Okay. we a 1. a 1. it victim Give participation.
“No *85 Now, “No moral justification. Bencangey argue Mr. wants to that one ‘Well, circumstances,’ say, there be might extenuating some but until he that, you some hard gives give evidence let’s that a 1.
“There is no —He distress. meant Give that 1. probably [Sic “duress.”] “There is no evidence intoxication. Give that a 1.
“The certainly defendant is not of tender fit age, mitigation, doesn’t on it on aggravation. fits Give it a 1.
“All of are these the benefit of the I’m giving doubt. them the lowest possible.
“The defendant was a accessory. in this. He was not the Let’s principal 1. give that a
“Now, Code, 190.3, this one Pen. factor we are still [(apparently (k))], § on waiting maybe Mr. can all Bencangey change of this indicating side, that that should be this but there no circum- extenuating give stances. We will that a 1. have, side,
“And yeah, then we mitigation on the we have got prior felony. felony. say There is no Let’s that a 3. prior give now,
“Okay, afterward, Mr. Bencangey say just is to ‘Wait going minute. Mr. How did Bowers arrive prosecutor] giving at these?’ I’m [the you numerical, an example. you I’m not telling that these are that this is the way you’re it. I’m going just trying get only do across concepts and way I know how to do it is give may illustrations. Your numbers be entirely may different. You differently, you it but have approach got think of it in a I logical, you know that will think of init a logical manner, of what is aggravating and what is mitigating. you
“When it total up—” jurors:
Several “22.” Mr. Okay. Bowers: I I “Oops. say didn’t excelled in math. 22 versus 3. You change you change you the numbers however want to them and figure you get out how can it to come out so that the mitigation greater than the You aggravation. will not. You will not.”
I submit that it is clear that the before the an inter- prosecutor put of the pretation instructions which we have said was incorrect. repeatedly *86 a that process; arithmetical essentially was process them that the He told each to determine whether a verdict is way to reach logical, legitimate value, total those it numerical assign a or mitigating, is aggravating factor not hesitate We should values, larger. is the which column and see role.4 jury’s the of misleading description a this as condemn not have been misled. jury the could assert that majority The nevertheless not, jury the did know that they how they no explanation But provide not, suggested. the prosecutor the means have decided the case could Instead, point. miss the they which arguments advance is
First, attorney’s argument jury told that an say, the the majority evidence, if fact pre- and that is never Argument not evidence. Of course. error, case-by- reversal, Brown and never reverse for cludes we could do Juries meaningless. be in Brown would promised case examination we alone; them they applying decide decide cases on the evidence not that a misunderstand- thought It been to the evidence. has never before law an error the admission than important as to the law is less ing applicable evidence. or exclusion of “count,”
Next, assert, the factors. not they “weigh,” was told jury be weighing could ways in which the instruction on spoke Brown of two to call “for a mere me- could be read misunderstood: that the instruction ‘scale,’ or the of the imaginary chanical of factors on each side counting (Brown, 40 Cal.3d arbitrary supra, of them.” assignment ‘weights’ first mistake does avoided the added.) prosecutor at italics That p. mean he avoided the second. not that misleading, argument
Finally, although gist the prosecutor’s when, in the last judgment normative majority say that he did refer to “just that death was the he told the argument, sentence of his rebuttal by this majority believe that fair” defendant had earned. Do rejected the idea argument, prosecutor after hours of single phrase, scales and a illustrated with length he just explained great had which values to the numerical by assigning chart—that a verdict could be reached If methodol- prosecutor’s them? we followed adding various factors and a support a scale those remarks which on one side of ogy placed stating prosecutor making argument, that for this Justice Arabian condemns the very against acceptable push limits “[p]rosecutorial exhibited here tactics such as those ” ante, shooting suggest at the (Cone, opn., p. 1262.) respectfully I . . . . behavior Brown, supra, 40 512. Cal.3d wrong target. opinion filed This case was tried before we our statutory interpretation lan of the prosecutor argument on one reasonable based his adopt a different inter failing that we would guage. to foresee He should be criticized pretation in Brown.
mechanical, verdict, arithmetical process and on the other reaching those remarks supporting normative the first far out- approach, would weigh the Or if we second. listen for the essence of the simply prosecutor’s columns, you that too is clear: if message, put the factors in the assign them values, relative numerical and add the columns—and do not your- concern self with such matters sympathy as and appropriateness—you cannot avoid arriving at verdict of death. Whether defendant deserves that verdict or not, he does not deserve a verdict way. arrived at
Brown, supra, any Cal.3d also might warned of that interpretation juror “to mislead of if impose sentence death aggravation outweighs mitigation even if the juror does not death the personally believe is appro- Allen, sentence under priate all the circumstances.” (People supra, Cal.3d 1277.) The to majority appear that if the is to agree jury decide penalty simply balancing is aggravation against mitigation, it essential that they consider the of the bal- appropriateness striking that penalty ante, (Maj. ance. opn., p. 1230.)
Here say is what the had prosecutor subject. to on this In his closing argument, he proposed arithmetical model then determining for penalty, said, “When all these . you are added . . up, weigh them. If the [factors] factors, aggravating outweigh factors the mitigating the sentence is death. There’s you. no—alternative for If they automatically it is outweigh, death. hand, On the other if mitigation outweighs aggravation, it is automati- [If] cally life imprisonment without possibility parole. So there no is []f] you your once do option, calculations.”
There nothing is here to that the suggest jury considered the appropria- teness of at penalty analysis.5 rebuttal, the death stage And in prosecutor made that clear: defense claims that circumstances “[T]he [were] not aggravated. you? What did I tell He uses the of other example []f] brutal, crimes, vicious talks about the death when is the death penalty, You appropriate? say didn’t hear His Honor anything about [fl] majority 5The assuming “weighing” accuse me of “appropriateness” that the func ante, separate independent. (Maj. opn., 1230.) tions are p. assumption. I make no such I agree majority jury may with the that appropriateness they weighing when consider are Actually, prosecutor majority relevant factors. it is criticizing, be should for separate, telling jury, “your job treated the two functions as weighing process. is a It’s not think, ‘Well, you no, case; for to I think appropriate-type this is an is appropriate- this not an ” type case.’ disagree Boyde I do with statement 46 Cal.3d 253 ante, 25], quoted by majority, page jurors P.2d 1230 that are “when they аssign they informed that appropriate have discretion to whatever value deem to the fac- listed, they necessarily they tors appropriate understand have discretion to determine the law, penalty.” jurors capital This is not a but statement of fact—of how in fact reason in unsupported by empirical trials—and is evidence. weighing is a job process. your Honor said His is when it appropriate, [fl] no, case; think, ‘Well, I is an appropriate-type think this you for to It’s not you Not is not for to decide. That case.’ this is not an appropriate-type []f] misleading if it’s an appropri- because That’s misleading. really. It’s kind of issue, you Are here [^j] comparison becomes a then it ate-type of situation case, case, other atrocious the Bittaker the Manson this with compare No, you are not.” crimes? [fl] rebuttal remarks prosecutor’s that the majority suggest
The generously other well-publi- whether only comparison addressing question were his context of may be the But while cized murders relevant.6 say limited: hear His Honor remarks, “You didn’t not so scope their ‘Well, think, I you for “It’s not it is anything appropriate.” about when no, is not an case; appropriate-type think this this an appropriate-type never told you prosecutor to decide.” case.’ That’s not only involved the com- of appropriateness to considerations objection *88 hand, case at the that in the other cases. He never said of this case to paring Had he penalty. whether death was the jury appropriate should determine construed, never have said without so he would intended his remarks to be this is “an to decide whether the is not jury supposed that qualification case.” appropriate-type the factors the case jury they placing the that could decide
Having told arbitrary assigning weights, mitigating columns and aggravating in the prosecutor compounded the appropriateness, without consideration erroneously weighed. factors are classified the error how explaining error, that the that does majority recognize noting appear The this “[i]t sheet’ ‘scale’ and ‘balance aggravating on the side of his prosecutor placed mental or emotional disturbance the absence of factors as ‘extreme’ such (id., 190.3, or consent factor victim ([Pen. Code,] (d)); participation factor § (id., duress factor factor extreme (e)); justification (id., (f)); belief in moral mere minor (id., (h)); participa- mental factor (g)); disease or intoxication factor In his mitigating (id., (k)). other evidence (id., (j)); tion factor 3to aggravating points of 22 rebuttal ‘score’ argument, prosecutor’s the absence of prior based on the that mitigating assumption was points cases, may mis prosecutor’s remarks be comparison in with other 6Even the context juror, deciding given to leading. authority weight to be the circum I of no that a know crime, may mentally compare penalty, not appropriate stances of the or whether death the facts of the case to those of other cases. Frank, ante, page People v. recently penalty verdict in We affirmed the you jury, important “I think it’s 1215], prosecutor in that case told the 798 P.2d The evaluating .... And in whether or not this appreciate not all murders are the same think, certainly, penalty, you I free to . are appropriate murder . . case for the death [is] spectrum kidnappings.” I think the of murders and where this fall determine does completely assertion. prosecutor correct this Frank (id., felony only factor; convictions factor (c)) was the mitigating deemed statutory all other factors to be aggravating, prosecutor thus misre- [f] presented sentencing formula. The mere absence of extenuating circum- ante, stances in the case cannot favor of death.” weigh (Maj. opn., pp. 1233-1234.)7 formula,
But even though prosecutor misrepresented sentencing the majority jury assert that the jury, they misled. The say, was instructed sentencing only to consider each factor they “if applicable”; ignore that the prosecutor jury, incorrectly, told the all factors were be applicable given weight. and must The majority also claim the prosecu- tor only nominal assigned weights to the seven absent extenuating factors. actually He assigned each a of “1.” He “5” weight assigned a weight misdemeanors, the prior violent and a of “3” weight to the absence of prior Thus, felony convictions. under this arithmetical analysis the combined weight of the absent extenuating factors was more assigned than the weight crimes, violent prior and more than twice the weight given the absence of prior felony convictions.
I cannot share the confidence of the majority jury, that a given ambigu- ous instructions and presented with an as argument completely and thor- here, oughly misleading as the prosecutor’s argument escaped unscathed. only Not is there a reasonable likelihood that misunderstood inway it which was determine there penalty, is also a likeli- reasonable *89 hood that this misunderstanding prejudiced defendant. While isit clear that Williams, defendant killеd Deputy the appropriate was a close punishment and difficult decision. The first jury deadlocked at the trial. Defense penalty counsel at the habeas testified corpus hearing jurors that told him the deadlock resulted from doubts concerning the extent of defendant’s culpability.
The justifies record such doubts. Defendant claimed that he the thought intruders were not police but members a rival Hispanic gang. story This plausibility has some defendant was a leader gang likely and a the target; in police were not uniform and in arrived unmarked It cars. also has some members, weaknesses: the police were older than typical gang mostly White the first (although to enter was Hispanic), announced their presence. prosecutor’s argument note, The respect. majority was erroneous in another As in the his closing argument incorrectly argued he aggravating. that defendant’s lack of remorse was ante, (Maj. opn., say pp. 1231-1232.) They theory tempered that he this in rebuttal when he only only asserted mitigation. that defendant had failed to show remorse as But this is half story. Having prove the that mitigation asserted defendant failed to remorse as under Penal 190.3, (k), prosecutor Code (k)—any section factor the on went to assert that factor circum gravity stances crime—belongs aggravating which extenuate the in the the column. This is People Boyd (1985) error under 782], 38 Cal.3d 775-776 700 P.2d a a residence was entry into forcible testimony whether There was disputed de- theory But the prosecutor’s tactic. gang or conceivable common and knew department police someone off fendant was tipped narcotics, waited for raid, and then that he hid of the police advance We no corrobo- have has a officer—also weaknesses. to “bag” police chance sus- been giving has anyone department in the police evidence that rating drug that a It also seems improbable raids. warnings police advance pects would incriminating evidence successfully concealed who had dealer he and incredible police, with the a violent confrontation still court only weapon. single-shot do so armed with would or the defendant’s theory deciding prosecution’s In whether believe cellmate, testimony of defendant’s testimony, critical evidence was to kill him of defendant’s plan that defendant told William Acker. He said a member of the man was by claiming thought off get policeman testimony credible was as Acker’s explained, rival But gang. prosecutor character, Acker but because was despicable, because of Acker’s which only from defendant which he could learn knew details of the crime however, now we opinion, II this reports. part As police explained County jail to obtain Angeles it was for inmates of Los easy know how from the police. cellmates’ crimes about their such detailed information tried, more would be even testimony, when defendant suspect Acker’s today. suspect from that virtually relating no evidence phase apart
There was no that defendant had proved the circumstances of the crime. The defense misdemeanor convic- two felony proved convictions. prior prosecution violence, of the conduct but did not introduce evidence involving tions short, was, in not a case in which a death they based. This which were obvious, be jury might per- but the kind of case which verdict death, argument and the instructions and vote for either life or suaded to misleading explan- In my judgment, grossly make the difference. could *90 to argued the prosecutor determination which penalty process tion of judgment. reverse the should us to compel II. and original convicted after
In after defendant was and October court, a news- filed with this corpus for habeas were supplemental petition a Angeles widespread practice article in the Los Times revealed paper County jail. The Angeles in the Los by inmate informers held perjury inmates, fellow by manufacture false confessions inmates in would question and in some cases to enforcement personnel, these confessions law report return, sort they In would receive some at trial. testify those confessions sentence, of benefit in terms of reduced reduced prosecution, jail better among conditions. Acker was those persons who numerous occasions reported testified to prisoners, confessions fellow and received benefits in return.
Defendant has from maintained the date of trial that testimony Acker’s but has peijured, he not been able to present conclusive evidence to corroborate his claim. He now seeks discovery of Acker’s enforcement law is files. This not what is sometimes referred to as a pejoratively “fishing exist, we the files expedition”; know contain probably material evi- dence.8 What defendant does know is the nature of that evidence—that why is he needs to files. see the
The majority never dispute defendant is entitled to the information. contrary, To the they suggest that the prosecutor duty has ethical disclose it. Neither they do the contention dispute that aggressive legal is intervention essential to redress a fraud on the widespread courts perpe- trated inmate with informers police prosecutor complicity. But when it comes down a nitty-gritty finding way to enforce the ethical obligation disclosure or to conduct the into inquiry perju- possible ry, tries, whatever defendant majority find technical barrier.
Specifically, majority (a) conclude that get defendant cannot discov- ery in connection with his automatic because the appeal appeal limited to appellate record; (b) get discovery cannot in an trial independent court discovery action because be ancillary must to a pending proceeding; (c) he cannot get discovery in connection with his pending corpus habeas petition because the perjury issue Acker’s is not within the of the scope and, cause; order show (d) even into taking account new allegations of Acker’s and new perjury evidence which gives plausibility to those allega- tions, he cannot discovery obtain by filing new habeas corpus proceeding because, Acker’s alleging perjury without discovery, he cannot allege sufficient short, facts Acker’s proving perjury to state a facie case. In prima majority conundrum, pose “Catch-22” perfect logical under which defendant cannot obtain discovery of the law enforcement records because without the information contained in those records he cannot file an action that would support discovery. Discovery
A. in the Trial Court. court superior granted discovery defendant’s motion of the rec- *91 in question. attorney ords The district for petitioned mandate from this discovery Defendant drop request offered to his a representative if of the district attor ney’s office would perjury swear under the files contain no material evidence relating testimony. to attorney accept Acker’s The district did not the offer. nullify the superior to should issue mandate hold that majority court. The view majority’s the afflicts the blindness which To understand order. court’s extraordinary circumstances appreciate one must of this proceeding, to act as it did. court the trial impelled which inmate in which article appeared a newspaper On October false but convinc- concocted inmate-informers how Leslie White described falsely those against testified other implicating prisoners, confessions ing in that article As benefits. described special in received return prisoners, or occasions, be confined arrange to the inmate would subsequent and on he had the opportunity could show suspect, so he with transported this delib- facilitate jail officials would (Sometimes hear a confession. facility known of the where portion in the erately housing suspect informant The inmate their own protection.) are confined for informers fellow investigating as a personnel, pose enforcement would law phone only known officer, those details were of the crime. Since and learn details them to not disclose would (who presumably enforcement personnel law informant, himself, such by including criminal and to the prisoner) confession, air of authentici- story spurious give in a false could details and, if the police the false confession to The inmate then ty. report would specific In inmates testify bargained to it in court. some cases requested, benefits, knew system; the inmates part but this not an essential they be information would they if came forward with useful regularly rewarded. attorney an began the district system
When perjury exposed, this used. At the jailhouse in which a informant was investigation of all cases a mem- tried this case submitted attorney’s deputy who request, district trial Acker had that before the Gonzalez orandum in which he noted cases,” and since that trial he in other “testified once twice previously in had testified other cases. 17, 1988, 88- attorney issued directive the district special
On November infor- jailhouse “We address those cases where which said: must also to do this on a objective way the most past; mants have been used independent will an review basis before the court. This insure case case immediately notify we Accordingly, begin on the merits of each case. will informant testified. attorney jailhouse of record each case which have received and attorney will be advised of the information we before bring to make a motion the matter where encouraged, appropriate, . . . .” the court directive, attorney district sent defense counsel
Pursuant to this investigation that his officewould undertake case a letter which said this *92 cases, jailhouse of all informant and that the information would be “made available to defense counsel individual cases” and “in cases appropriate ... be thoroughly aired in court.” The letter open went on to state: “We anticipate that review will be conducted several judges to testi- listening mony elicited the prosecution and the defense. That forum provides for the opportunity most effective of getting method at the facts: examina- tion witness under oath and the compulsory production through subpoe- na . .” of documents . . case,
Information in revealed the trial of this subsequently, and shows trial, that Acker was an informant-witness in three cases before defendant’s in engaged information providing prosecutors two other trial, cases at the time of the and thereafter regularly continued to provide testimony against fellow inmates. It also shows that Acker received benefits for information providing testimony. But it does not show whether his testimony in this or any other case was false. Kaus, January
In of 1989 the Honorable M. justice Otto a former of this court, was appointed to head a grand jury investigation. The grand jury informants, heard from testimony six investigators talked to nineteen others. report Its with replete detail about the informant practices know, question, but omits all names. We do not example, for whether Acker was among the informants who testified or were interviewed. meantime,
In the recognizing that trial counsel duty were under no bring actions on behalf of defendants whose cases were on appeal, district attorney and the defense bar requested court to appoint counsel for that task. The trial court thereupon appointed defendant’s appellate counsel to represent him trial court proceedings to discover whether his conviction or sentence was the result perjured testimony. informer
Counsel accordingly discovery moved of law enforcement files relat- ing to Acker. Although attorney the district previously had offered to make counsel, such information available to defense he opposed the motion. Not- ing the critical importance testimony of Acker’s to the finding special circumstance penalty judgment, Superior Court Judge Cianchetti granted the motion in part. attorney district then brought the present claiming mandate petition,
that the trial court no jurisdiction had to grant discovery when no action before pending that court. The majority endorse this position.
In choosing analyze this by addressing only the proceeding narrow question whether the trial ordinarily court has jurisdiction a case pending
1283 by broad, extraordinary posed question miss the majority on appeal, inquire a court to authority of trial is the question case. That facts of this fraud, an entire that of widespread the victim it has been charges that into and to deter- of by perjury, a may pattern have been tainted of class cases by rules cited limiting The have been so affected. cases mine which court to They compel would situation. are to this majority inadequate trial, awaiting a case was whether upon depending its fragment inquiry, final, at the threshold many bar inquiry instances already appeal, might the inquiry the facts already know does because the defendant reveal. to any of court inherent power it within the firmly believe that
I large in a that its charges proceedings into well-founded inquiry conduct and, to facilitate a of by pattern perjury, tainted of cases have been number to information to disclose material the prosecutor that to order inquiry, by Constitu- “A court set likely up the perjury. victims of [California] indeed, to power it of self-preservation, has within the power tion This operation. its and convenient all to successful remove obstructions three to one of the belongs that it is of and part arises from the fact Riley v. (Millholen up set the Constitution.” independent departments to includes the 69].) power Cal. 33-34 P. That (1930) power 211 [293 . . . .” involving confidential information overreaching “cure abuses or Marwick, Court (1988) Cal.App.3d Mitchell & Co. v. (Peat, Superior “to abuse power prevent 286-287 It includes the Cal.Rptr. 873].) [245 a even in the absence remedy wrong its and to create a process, RMI, Steel & Inc. statutory (Western Ship Repair, remedies.” specific 556].) Inc. (1986) Cal.App.3d Shillinger (10th Cir. Tenth Circuit in Hopkinson decision of the 1185, 1220-1221, court 1989) power 866 F.2d demonstrates discovery the absence of despite to grant somewhat similar circumstances murder; In defendant had been convicted action. that case the pending Court, Wyoming conviction had been affirmed Supreme however, the murder. The continued to grand jury, investigate final. A had him, exonerate but tending it heard evidence to defendant asserted that had any evidence. The circuit court ruled he could not to point specific grand jury for the need” since the defendant had shown “particularized 384 U.S. L.Ed.2d v. United States (see Dennis transcript 973, 984, to the federal directing 86 S.Ct. he was entitled an order 1840]), reveal in camera judge transcript district court review the had no though independent the defendant evidence—even exculpatory proceeding pending.9 holding This indicates defendant Gonzalez is entitled discover the evidence grand jury—which may presented be *94 it of some use—but further: it goes suggests that if a defendant is entitled to state, discovery of evidence in the of hands the he can an bring independent action enforce that even if no or right appeal habeas proceeding is corpus pending. (1990) Ainswоrth 217 247 Cal.App.3d Cal.Rptr. 175], the [266 actually
case on which the majority rely, supports only that proposition the trial court jurisdiction loses its to entertain a postjudgment discovery motion when remittitur has issued an following unsuccessful and the appeal defendant has not filed a petition habeas so there is no corpus, pending proceeding which could result in a new trial. The majority approve of the discovery Ainsworth court’s that “a reasoning motion is not independent remedy. ancillary or It is right to an ongoing action or After the proceeding. final, judgment has become there is in nothing pending trial court to discovery may which attach.” (217 Cal.App.3d p. 251.) But what the majority overlook is that the Ainsworth court stressed that it was the finality of the judgment and the lack any pending of “collateral attack” which robbed the trial jurisdiction court of its discovery entertain the motion at Here, no issued; issue. remittitur had defendant’s appeal and habeas corpus were both petition pending at the time he made discovery his request. As the court in held Wisely Superior Court 175 (1985) Cal.App.3d Cal. the fact Rptr 893], in appeal was this court at pending the time defendant discovery filed his request would not the trial deprive court of its jurisdiction to hear the merits of the Under request. California Civil Code of Procedure section (a), subdivision “the of an perfecting stays appeal proceedings the trial court or upon judgment order from or appealed upon the matters embraced therein or thereby, affected order, including of judgment enforcement or may but the trial court any proceed upon other matter embraced the action and not by affected judgment or order.” (Italics added.) The purpose section is to “pro jurisdiction court; tect the of the the rule appellate prevents the trial court from rendering futile appeal changing judgment into something different. a Accordingly, whether matter is ‘embraced’ ‘affected’ . judgment. . on whether depends on the postjudgment proceedings matter would have on the re (In Marriage appeal.” effect ‘effectiveness’of Horowitz Cal.App.3d 880], italics added Witkin, omitted; citations see (3d also 9 Cal. ed. 1985) Procedure §9, Appeal, p.40.) 9Hopkinson's corpus proceeding simply habeas contended the state had violated his rights by disclosing presented grand jury.
constitutional the evidence to the itself will have no impact discovery request or denial of granting majori- said for the that can be of the The best appeal. effectiveness on the discovery lead to the might request granting is that ty’s position corpus petition a habeas amending lead to the might which of evidence court, on the habeas hearing lead to might in turn in this which pending This is far too of the appeal. all or part which moot might corpus petition of Civil under Code jurisdiction divest the trial court of remote a danger (a). section subdivision Procedure of Civil under Code order should be sustained
Thus the trial court’s *95 916, on I not rest our decision subdivision But would (a). Procedure section final, no and collateral Even if defendant’s were appeal narrow a basis. so into jurisdiction inquire the court should still have action were pending, a have been tainted pattern that its decisions charges well-founded grant discovery orders and and government complicity, inmate perjury to that inquiry. incident Discovery Corpus.
B.
in Connection With Habeas
in
We
this court
1984.
a
for habeas
with
petition
corpus
Defendant filed
Defendant filed a supplemental petition
issued an order to show cause.
1986,
We
1984 petition.
also as a traverse to the return
which served
but
supplemental petition,
an amended order to show cause on the
issued
govern-
Acker acted as a
that order did not include the
whether
question
defendant, rendering
ment
statements from
agent
eliciting incriminating
States
377
(1964)
Acker’s
inadmissible
Massiah v. United
testimony
under
246,
Henry (1980)
84
States v.
U.S. 201
L.Ed.2d
S.Ct.
and United
[12
1199]
115,
majority
100
The
therefore
U.S.
L.Ed.2d
S.Ct.
[65
2183].
file in connec-
discovery
conclude that defendant cannot obtain
of Acker’s
here.
tion with the habeas corpus proceeding pending
alleged
In
defendant
petition
the amended habeas
he filed
corpus
for
system
that Acker
a
the law enforcement
agent,
was
state
rewarded
inmates;
informing
had
history
that he
eliciting information from fellow
defendant;
he
that
had
against
to the time he informed on and testified
prior
they encouraged
law
officials and that
relationships with
enforcement
prior
than a fellow
information;
ostensibly
him
that he
no more
to elicit
inmate;
in a cell next to defend
may
deliberately placed
that he
have been
but,
ant;
merely
as Acker
listening post
and that he was not
a passive
admitted, deliberately
defendant. (Compare
initiated conversations with
364-365,
Kuhlmann v. Wilson
To state facie prima States, basis for relief under Massiah United supra, 377 U.S. and United States v. Henry, 447 U.S. supra, *96 petitioner must show that a government agent—a prisoner acting under state direction or inducement—deliberately elicited incriminating state- defendant, ments from the and that such statements were prejudicial. (See 543, v. Hovey 121, 44 (1988) Cal.3d 559-561 749 P.2d and cases cited.) there To state a prima facie case for relief based on 776] testimony, use of knowing perjured a petitioner “[fjalse must that show evidence that is substantially or material on the probative issue guilt Code, 1473, punishment was introduced” (Pen. (b)(1)) subd. and that the § (In perjury prejudicial.12 re Wright (1978) 78 Cal.App.3d We Cal.Rptr. 535].) could have found petition defendant’s 1986 stated a prima facie case on both grounds, but were led astray ignorance our the practices of informers in the Los Angeles County jail, manner in which the allegations were set in out petition. petition put the Massiah/Henry claim in terms of a failure of investigate, counsel to but the allegations significant deficiency. showed no In it is hindsight, now clear that the pattern of informer jail system perjury was clever enough to deceive even a competent investigator. The also petition alleged gave Acker information a about murder of which his wife was accused at some time be January fore gave 1979. He information about murder of fellow which inmate Torres was accused, starting say in March He 1980. contacted the sheriif’s office to that fellow inmate early Anderson had August confessed him about a murder 1980. He testified in defend guilt phase August ant’s for the first time on During questioning, giv 1980. he admitted ing Greer, involving information on another case fellow inmates Burkett and and indicated may given that he have began informing information in that case before he on defendant. inmates, Davis, Those cases involved Acker’s fellow LaScola and Williams. requirement, The former petition allege prosecution that must that knew or evidence, falsity Code, have should known of the (See has been abolished. Pen. § (c).) subd. rewards, but it received many inmates and that Acker had informed asked or direct- had representative state allege specifically failed defendant, or that he had information from incriminating Acker to elicit ed testimony Again in that case. for his a reward or received been promised unnecessary; are requests promises specific see that such hindsight we if he comes inmate knows that savvy which a system the state set up false, he will be true or a notorious prisoner, a confession from forward with concentrated perjury of Acker’s Finally, petition’s allegations rewarded. confession—testi- testimony describing defendant’s false alleged not on the concerning Ack- on false statements clearly mony prejudicial—but that was in other cases. informing er’s to state not suificient if and 1986 were petitions
But even the 1984 that, relief, even majority statement I find incredible facie case prima to the as a proceeding supplement in the mandate treating allegations to the mandate response is stated. Defendant’s no facie case petition, prima falsely that Acker testified now asserts makes clear that defendant petition special on the issues of circumstance as matters material and probative section under Penal Code grounds corpus which is for habeas penalty, 1473, subdivision (b)(1). he did although from the initial trial
Defendant has maintained case, Acker, of his nor share with Acker the details converse with did not testified. But the incriminating statements to which Acker did he make the is no invented the confession his claim that Acker support evidence judicial *97 We have taken notice longer limited to defendant’s word. how by County Jury detailing Los Grand Angeles the 1989-1990 report successfully fabricated con- County jail at the Angeles various inmates Los or encouraged ignored other and how authorities by fessions inmates out, true, nothing report It as in that majority point fabrications. is scheme, is and that there no a in the fabrication names Acker as participant yield that will that the files will information prosecution’s indication specific course, That, defendant seeks identify why Acker as a of is participant. “fish” as a to discovery. attempt But to characterize defendant’s request relief, for confirm “mere grounds specu- files discover new to through to ante, unfair; he is states that (maj. 1259) defendant opn., p. grossly lation” cоmmitted a infor- regular that Acker was knows that Acker perjury His many perjured at informants themselves. regularly mant a time when investi- any upon than case which must speculative depend case is no more specific of fact. discovery allegations substantiate gation allegations as are that if we defendant’s majority accept concerned records, have to we will discovery of law enforcement permit suificient to testimony from an informant the use of every challenging it in case allow Angeles County years housed at the Los 1988. jail during through ante, That, course, fn. (See maj. exactly opn., p. 56.) what the court, attorney district to the proposed superior superior and what the court planned granted do until this court review the mandate action. However, the relatively number cases affected is small. there Although 8,600 time, persons jail grand are confined in the one report attorney’s informant notes that the district jailhouse litigation team has just jailhouse identified cases in which informants were called testify years to October 1988. L.A. prior (Rep. County of the 1989-90 Jury, Grand A list of 4.) jailhouse by informant cases released the Los p. County Angeles Attorney’s District officeand in the Los Angeles published 3, 1989, Daily January 130; Journal on numbered defendant’s case was Moreover, among them. the majority gloss over a crucial by fact alleged defendant documentation: supported defendant was invited attorney “any district to make motion” appropriate concerning possibil- ity Acker was involved in the confession fabrication scheme.13It is true that the attorney “specifically district did indicate” that the prosecu- yield tion’s files would information that would undermine Acker’s testimo- ny, but deny neither did he that fact.
What must a allege defendant to state facie case under Penal prima Code First, section and thus acquire right discovery? allege must that when Acker described what him petitioner told about the supposedly crime, This, believe, Defendant, Acker I committed he has perjury. done. course, occurred, was present when the conversation and his statement under would be direct perjury evidence of what he actually told Acker. cannot, however,
We issue orders to cause show whenever prisoner that a alleges witness has lied. The prosecution credibility of prosecution trial, witnesses is generally resolved at disagreement and defendant’s with the jury’s assessment is not grounds habeas Thus to corpus. state case, facie prima defendant must also additional facts that have come allege *98 trial, to light to which lend claim subsequent weight such additional to his a burden, that new is warranted. here has inquiry Defendant met this setting out both testimony inconsistencies between that later discovered and, evidence more importantly, new evidence of a pattern perjury by informers the Los Angeles County jail at the time Acker was an informer in residence. The majority assert that corpus habeas “is a device for claims, investigating a possible but means for actual claims.” vindicating ante, (Maj. opn., 1260.) actually Defendant has claimed Acker p. that attorney The willing district has saying never been to commit himself to what motion “appropriate.” majority. would be Neither will the finding the bearing upon facts falsely probative material and as to testified for relief under is grounds and penalty—which circumstances special be a to showing this set forth facts section 1473—and has Penal Code claim, majority’s criteria. meeting thus the credible issues, should have discre- issuing court an to cause Once order show California cases are no discovery. apparently there grant Although tion to case, Harris leading courts. In the rule is clear in the federal point, on United 1082], the L.Ed.2d 89 S.Ct. (1969) 394 U.S. Nelson granting court order discov- Court a federal district upheld States Supreme “where specific allegations that ery proceeding, stating in a habeas corpus may, if the facts petitioner court to believe that the before the show reason he confined illegally to that fully are be able demonstrate developed, relief, to duty it is the of the court provide is therefore entitled to Obviously, in necessary inquiry. facilities and for an procedures adequate as familiar may procedures, appro- this the court utilize exercising power, (Id. . at The American Bar 291].) . . .” L.Ed.2d p. p. priate discovery the use of for Criminal Justice also endorse Association Standards Justice, for Criminal std. ABA Standards corpus proceedings (4 habeas to ex- 22.46-22.49); commentary ed. this standard (2d 1988) 22-4.5 p. . . a alleges “One . arises when problem prisoner that recurrent plains that can be meritorious claim but the evidence application apparently court.... Controlled use adduced to the claim is unknown to the support scale, devices, a what discovery only if limited will demonstrate evidentiary for applica- are baseless basis applications marshaling while I with merit.” have no should follow this guidance tions doubt that we discovery limited in habeas permit corpus proceedings. however, no facie case. Their blithe majority, perpetua- find prima it in а case in which is clear disturbing
tion of the Catch-22 is particularly satisfy he needs to gain that if defendant could access to the information Acker’s showing facie majority’s stringent requirements for prima testimony, testimony easily he show Acker’s prejudice. could perjured, raid, him been “tipped” expect police that defendant told had claim, falsely, that he that he and that he “bag cop,” planned wanted neighbor- of a street at war gang believed the officerswere members with hood, allega- is the circumstance principal support special evidence per- killed a officer intentionally police engaged tion that defendant fact, in this recalled that duty. judge In trial case original formance *99 testimony Acker’s was “critical to the issue of whether not the special circumstance which was alleged was involved.”14 however, majority,
The declare that is though even state withholding evidence, potentially exculpatory the limited scope pleading and require- of ments habeas corpus prevent defendant from facie case stating prima and the concealed evidence. In of discovering light their of how explanation of pleading requirements discovery habeas can stifle of critical corpus turn, every evidence at it seems appropriate quote court with a different on the perspective of habeas “The writ of scope corpus; habeas is corpus fundamental instrument for individual freedom arbi- safeguarding against trary and lawless state action .... scope flexibility the writ— its all illegal reach manner of capacity ability detention—its to cut through barriers always mazes—have procedural been empha- of form sized and jealously by courts guarded very and lawmakers. The nature of the writ demands that it be flexibility administered with the initiative and essential to insure that miscarriages justice within its reach are surfaced and corrected And this Court has emphasized, taking into ....[][]... account the office of the writ and the fact that the in petitioner, being custody, usually handicapped developing evidence needed to sup- port necessary detail the facts in his that a habeas alleged petition, corpus ” must proceeding not be allowed to in a (Harris morass' ‘procedural founder Nelson, 394 U.S. supra, 286], 290-292 L.Ed.2d italics add- ed.)
It is majority that the plain are uncomfortable with the conclusion that court, defendant remedy, has no direct either here or the trial to obtain discovery other, They the Acker file. suggest try that defendant more circuitous, remedies, legal but without confidence that he will succeed in getting discovery.15They note that defendant retains extrajudicial means of investigation,16 I know although of none that would access to compel only theory 14The testimony other evidence to contradict the defense of the case was the they deputies day two who said that shooting had interviewed defendant the after the point, explained that at coming. one he cops” that he ran inside his house when he saw “the They testified, however, they further that repeat when asked defendant to he had what said them, cops,” they about “the explaining he corrected that had not said that and that must have been confused. majority 15The refer to Government Code et seq., section 6250 the California Public Rec ords Act. But documents before this court show how the civil suit filed on behalf of another County criminal involving Angeles jail defendant under that act to obtain information Los stymied by house informant agencies, apparently has been several law enforcement have who position requested taken the exempt information is from disclosure under the act. work, however, remedy may by majority: One is not action dis- mentioned ante, presented cover grand jury. (See 1283-1284.) the evidence pp. before the note, contrast, 16I position attorney the initial of the district that the courtroom was the appropriate timony. by perjured forum in which to determine which cases tes were affected informer *100 confidence Finally, they express records. enforcement confidential law any to disclose obligation ethical discharge their lawyers will the People’s ante, The 1260-1261.) (Maj. pp. they opn., have. material evidence witnessed about-face abrupt of the light misplaced confidence appears inviting discovery after to block have moved attorneys the People’s here: is not a case it, that this to maintain and continue defendant to seek of disclosure. they obligation have which smoke, is not substance. remedies discussion of alternative All this discovery deny all affirm the conviction majority line that the bottom to execute may proceed now The State of California or collateral relief. may show it has concealed which information revealing defendant without testi- with perjured procured defendant’s conviction and were to haunt us. may return justice This which mony. miscarriage is a February 1991. denied rehearing for a petition Appellant’s Broussard, J., granted. be that the should opinion petition of the