Stanford Law School - Robert Crown Law Library

Filed 10/24/07

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S040527
v.
) Orange
County
TIMOTHY LEE DEPRIEST,
Super. Ct. No. C-90616
Defendant and Appellant.

MODIFICATION OF OPINION
THE COURT:

The opinion, which appears at 42 Cal.4th 1, is modified to delete language
on page 28, footnote 7, reading:

“To warrant dismissal of the case on due process grounds,
preindictment delay must cause ‘substantial prejudice’ and serve as
an ‘intentional device to gain tactical advantage.’ (Marion, supra,
404 U.S. 307, 324; cf. United States v. Lovasco (1977) 431 U.S. 783,
795-796.) Defendant has not shown that the challenged delay was
intended to gain such advantage. Nor, for reasons we have
explained, has he shown prejudice.”
Substitute the following for the deleted language in footnote 7:
“To warrant dismissal of the case on due process grounds,
existing law requires a showing that the state’s conduct in deferring
prosecution ‘deviate[d] from “fundamental conceptions of justice” ’
(United States v. Lovasco (1977) 431 U.S. 783, 790-791), and that
the ability to mount a defense has thereby suffered ‘substantial
prejudice.’ (Marion, supra, 404 U.S. 307, 324; see Lovasco, supra,
at pp. 790-791.) Here, defendant has not shown that any delay

---

attributable to the prosecution — delay intended only to allow a
sister jurisdiction to complete its own criminal proceedings —
violated such fundamental concepts. Nor, for reasons we have
explained, has he shown actual prejudice. (See, e.g., Horning,
supra, 34 Cal.4th 871, 895.)

This modification does not effect a change in the judgment.

---

Opinion Information

Date:	Docket Number:
Wed, 10/24/2007	S040527M

Disposition
Aug 9 2007	Opinion: Affirmed

Dockets
May 27 1994	Judgment of death
Jun 17 1994	Filed certified copy of Judgment of Death Rendered   5-27-94.
Jul 5 1994	Application for Extension of Time filed   By County Clerk to Complete C.T.
Jul 5 1994	Application for Extension of Time filed   By Court Reporters to Complete R.T.
Jul 7 1994	Extension of Time application Granted   To County Clerk To 8-15-94 To Complete C.T.
Jul 7 1994	Extension of Time application Granted   To Court Reporters To 8-15-94 To Complete R.T.
Sep 23 1998	Counsel appointment order filed   Russell S. Babcock Is appointed to represent Applt for the direct Appeal.
Nov 20 1998	Filed:   Applt's request for Relief from Default & Perm. to file Applic. for Ext. of time to request Corr. of Record.
Nov 30 1998	Filed:   Suppl Proof of Service of request for Eot.
Dec 1 1998	Order filed:   Granting Applt's request for Relief from Default & Perm. to file Applic. for Ext. of time to request Corr. of Record. Applt granted to and Including 12-24-98 to request Corr. of Record.
Dec 14 1998	Counsel appointment order filed   Upon request of appellant for appointment of counsel, Thomas Nishi is hereby appointed to represent appellant for habeas corpus/executive clemency proceedings related to the automatic appeal now pending in this court.
Dec 14 1998	Application for Extension of Time filed   By Applt to request correction of the Record.
Dec 17 1998	Extension of Time application Granted   To Applt To 2-22-99 To request Corr. of Record.
Feb 16 1999	Application for Extension of Time filed   By Applt to request correction of the Record.
Feb 23 1999	Extension of Time application Granted   To 4-23-99 To request Record correction
Apr 15 1999	Compensation awarded counsel
Apr 21 1999	Application for Extension of Time filed   By Applt to request correction of the Record.
Apr 26 1999	Extension of Time application Granted   To 6-22-99 To request Record correction
May 26 1999	Compensation awarded counsel
Jun 18 1999	Application for Extension of Time filed   By Applt to request correction of the Record.
Jun 23 1999	Compensation awarded counsel
Jun 29 1999	Extension of Time application Granted   To 8-23-99 To request Record correction
Aug 18 1999	Application for Extension of Time filed   By Applt to request Corr. of the Record.
Aug 20 1999	Extension of Time application Granted   To 10/22/99 To request correction of the Record. no further Extensions of time Are Contemplated.
Nov 4 1999	Compensation awarded counsel   Atty Babcock
Jan 13 2000	Compensation awarded counsel   Atty Babcock
Mar 31 2000	Received:   Applt's request for Corr. of Transcripts, Addit. Record on Appeal, to Examine Sealed Transcripts and to Settle the Record on Appeal (13 Pp.)
Aug 16 2000	Appellant's opening brief letter sent, due:   9/25/2000
Aug 16 2000	Record on appeal filed   C-20 (6,258 pp.) and R-36 (7,289 pp.) including material under seal; Clerk's Transcript includes 3,045 pages of Juror Questionnaires.
Sep 20 2000	Application for Extension of Time filed   To file AOB. (1st request)
Sep 21 2000	Filed:   Amended application for extension of time to file AOB.
Sep 28 2000	Extension of Time application Granted   To 11/27/2000 to file AOB.
Nov 3 2000	Counsel's status report received (confidential)
Nov 20 2000	Application for Extension of Time filed   To file AOB. (2nd request)
Nov 29 2000	Extension of Time application Granted   To 1/26/2001 to file AOB.
Jan 2 2001	Counsel's status report received (confidential)
Jan 10 2001	Compensation awarded counsel   Atty Babcock
Jan 10 2001	Compensation awarded counsel   Atty Nishi
Jan 16 2001	Application for Extension of Time filed   To file AOB. (3rd request)
Jan 22 2001	Extension of Time application Granted   To 3/27/2001 to file AOB.
Feb 15 2001	Counsel's status report received (confidential)   from atty Babcock.
Feb 20 2001	Counsel's status report received (confidential)   from atty Nishi.
Feb 28 2001	Compensation awarded counsel   Atty Nishi
Feb 28 2001	Compensation awarded counsel   Atty Babcock
Mar 15 2001	Compensation awarded counsel   Atty Babcock
Mar 26 2001	Application for Extension of Time filed   To file AOB. (4th request)
Apr 5 2001	Filed:   Suppl. declaration in support of 4th request for extension of time to file AOB.
Apr 11 2001	Extension of Time application Granted   To 5/29/2001 to file AOB.
Apr 24 2001	Counsel's status report received (confidential)   from atty Babcock.
May 23 2001	Compensation awarded counsel   Atty Babcock
May 31 2001	Application for Extension of Time filed   To file AOB. (5th request)
Jun 6 2001	Extension of Time application Granted   To 7/30/2001 to file AOB.
Jun 11 2001	Counsel's status report received (confidential)   from atty Babcock.
Jun 14 2001	Compensation awarded counsel   Atty Babcock
Jul 23 2001	Application for Extension of Time filed   To file AOB. (6th request)
Jul 30 2001	Extension of Time application Granted   To 9/28/2001 to file AOB. No further extensions of time are contemplated.
Aug 14 2001	Counsel's status report received (confidential)   from atty Babcock.
Aug 22 2001	Compensation awarded counsel   Atty Babcock
Sep 12 2001	Application for Extension of Time filed   To file AOB. (7th request)
Oct 4 2001	Filed:   Second applicaton in support of 7th request for extension of time to file AOB.
Oct 9 2001	Filed:   Suppl. declaration in support of request for extension of time to file AOB.
Oct 24 2001	Extension of Time application Granted   To 11/27/2001 to file AOB. No further extensions of time will be granted.
Nov 14 2001	Counsel's status report received (confidential)   from atty Babcock.
Nov 14 2001	Request for extension of time filed   to file AOB. (8th request)
Nov 16 2001	Extension of Time application Granted   To 1/28/2002 to file AOB, based on counsel's representation that this is his final application for extension of time to file the AOB. No further extensions of time will be granted.
Dec 7 2001	Counsel's status report received (confidential)   from atty Nishi.
Jan 25 2002	Application to file over-length brief filed   By applt. to file AOB. (562 pp. AOB submitted under separate cover)
Jan 30 2002	Order filed   Applt.'s application to file over-length brief is granted.
Jan 30 2002	Appellant's opening brief filed   (562 pp.)
Feb 26 2002	Request for extension of time filed   To file resp.'s brief. (1st request)
Mar 4 2002	Extension of time granted   To 4/30/2002 to file resp.'s brief. The court anticipates that after that date, only two further extensions totaling 120 additional days will be granted. Counsel is to take all steps necessary to meet this schedule.
Apr 25 2002	Request for extension of time filed   To file resp.'s brief. (2nd request)
May 1 2002	Extension of time granted   To 7/1/2002 to file resp.'s brief. The court anticipates that after date, only one further extension totaling 60 additional days is contemplated.
May 22 2002	Compensation awarded counsel   Atty Babcock
May 28 2002	Counsel's status report received (confidential)   from atty Nishi.
Jun 25 2002	Request for extension of time filed   To file resp.'s brief. (3rd request)
Jun 27 2002	Extension of time granted   To 9/3/2002 to file resp.'s brief. Dep. Atty. General Shum anticipates filing that brief by 12/2/2002. Two further extensions totaling 90 additional days are contemplated.
Aug 27 2002	Request for extension of time filed   To file respondent's brief. (4th request)
Aug 29 2002	Compensation awarded counsel   Atty Nishi
Aug 29 2002	Extension of time granted   to 11-4-2002 to file respondent's brief. After that date, only one further extension totaling 28 additional days is contemplated. Extension granted based upon Deputy AG Shum's representation that she anticipates filing the brief by 12-2-2002.
Oct 17 2002	Counsel's status report received (confidential)   from attorney Nishi.
Oct 31 2002	Request for extension of time filed   To file respondent's brief. (5th reqeust)
Nov 4 2002	Extension of time granted   To 1/3/2003 to file respondent's brief. After that date, only one further extension totaling about 30 additional days will be granted. Extension is granted based upon Deputy Attorney General Quisteen S. Shum's representation that she anticipates filing that brief by 2/7/2003
Jan 2 2003	Request for extension of time filed   to file informal response. (6th request)
Jan 3 2003	Counsel's status report received (confidential)   from atty Nishi.
Jan 10 2003	Extension of time granted   to 2-7-2003 to file respondent's brief. After that date, no further extension will be granted. Extension granted based upon DAG Shum's representation that she anticipates filing the brief by 2-7-2003.
Feb 7 2003	Filed:   resp's application for leave to file brief exceeding the 280-page limit. (respondent's brief submitted under separate cover)
Feb 13 2003	Order filed   granting application of respondent for leave to file respondent's brief exceeding the 280-page limit.
Feb 13 2003	Respondent's brief filed   (314 pp.)
Mar 19 2003	Request for extension of time filed   to file appellant's reply brief and request for relief from default. (1st request)
Mar 25 2003	Order filed   Appellant's request for relief from default is granted. Extension is granted to 5/5/2003 to file appellant's reply brief. After that date, only three further extensions totaling about 160 additional days will be granted. Extension is granted based upon counsel Russell S. Babcock's representation that he anticipates filing that brief by 10/15/2003.
Apr 9 2003	Compensation awarded counsel   Atty Nishi
Apr 28 2003	Request for extension of time filed   to file appellant's reply brief. (2nd request)
Apr 30 2003	Extension of time granted   to 7/7/2003 to file appellant's reply brief. After that date, only two further extensions totaling 100 additional days will be granted. Extension is granted based upon counsel Russell S. Babcock's representation that he anticipates tilng that brief by 10/15/2003.
Jun 26 2003	Request for extension of time filed   to file appellant's reply brief. (3rd request)
Jul 2 2003	Extension of time granted   to 9/2/2003 to file appellant's reply brief. Extension is granted based upon counsel Russell S. Babcock's representation that he anticipates filing that brief by 9/2/2003. After that date, no further extension is contemplated.
Jul 9 2003	Compensation awarded counsel   Atty Babcock
Aug 13 2003	Compensation awarded counsel   Atty Babcock
Aug 28 2003	Request for extension of time filed   to file reply brief. (4th request)
Sep 3 2003	Extension of time granted   to 11/3/2003 to file appellant's reply brief. The court anticipates that after that date, no further extension will be granted. Counsel is ordered to inform his assisting entity of this schedule, and counsel and his assisting entity are ordered to take all steps necessary to meet it.
Oct 30 2003	Appellant's reply brief filed   (137 pp.)
Dec 23 2003	Compensation awarded counsel   Atty Babcock
Mar 30 2004	Counsel's status report received (confidential)   from atty Nishi.
May 4 2004	Compensation awarded counsel   Atty Nishi
Jun 23 2004	Counsel's status report received (confidential)   from atty Nishi.
Jun 20 2005	Motion for access to sealed record filed   appellant's request for duplication and transmission of material under seal to appellate counsel.
Jun 22 2005	Filed:   supplemental declaration of service of appellant's motion for duplication and transmission of material under seal.
Aug 17 2005	Letter sent to:   respondent soliciting response to "Appellant's Request for Duplication and Transmission of Material Under Seal to Appellate Counsel." Response to be served on appellant and filed on or before 8-24-2005. The response need not be limited to any particular issue raised in the motion. At a minimum, however, respondent should address whether, in order to protect witness safety, access to sealed portions of the reporter's transcript dated September 28, 1993 (RT 290-297) and January 24, 1994 (RT 5123-5127) should be denied entirely, or at least should be limited to appellant's counsel alone and should state that defendant personally shall have no such access.
Aug 22 2005	Filed:   respondent's response to appellant's request for duplication and transmission of material under seal to appellate counsel.
Aug 24 2005	Related habeas corpus petition filed (concurrent)   No. S136672
Sep 21 2005	Order filed   Appellant's Request for Duplication and Transmission of Material Under Seal to Appellate Counsel," filed June 20, 2005, is granted to the following extent: The clerk is directed to provide counsel for appellant with copies of the following sealed materials: portions of the reporter's transcript dated September 28, 1993 (R.T. 290-297), October 22, 1993 (R.T. 344-352), and January 24, 1994 (R.T. 5123-5127), and portions of the clerk's transcript dated January 5, 1994 (C.T. 29-31) and February 14, 1994 (C.T. 37). It is ordered that only counsel for appellant may have access to the portions of the reporter's transcript dated September 28, 1993 (R.T. 290-297), and January 24, 1994 (R.T. 5123-5127). Neither the transcripts nor any information contained in them is to be disclosed to appellant or to any other person. If counsel for appellant wishes to use these materials for any purpose, or to disclose or describe their contents to appellant or any other person, counsel must apply to this court for permission to do so. To the extent the parties quote, disclose, or describe these materials in any such application or in any other court papers, those papers must themselves be filed or lodged under seal. The clerk is directed to keep the foregoing materials under seal. In all other respects, appellant's motion is denied. George, C.J., was absent and did not participate.
Dec 21 2005	Compensation awarded counsel   Atty Babcock
May 17 2006	Compensation awarded counsel   Atty Nishi
Jan 22 2007	Exhibit(s) lodged   People's 1, 3, 4, 5, 6, 7, 8, 65, 93, and 94.
Feb 28 2007	Exhibit(s) lodged   People's no. 104.
Apr 4 2007	Oral argument letter sent   advising counsel that the court intends to schedule this case for argument for either the late May calendar, to be held the last week of May 2007, in San Francisco, or the June calendar, to be held the week of June 4, 2007, in Los Angeles. The advisement of "focus issues," notification that two counsel are required, and any request for oral argument time in excess of 30 minutes must be submitted to the court within 10 days of the order setting the case for argument.
May 2 2007	Case ordered on calendar   to be argued on Wednesday, June 6, at 1:30 p.m., in Los Angeles
May 15 2007	Filed letter from:   Deputy Attorney General Quisteen S. Shum, dated May 15, 2007, re focus issues for oral argument.
May 24 2007	Filed letter from:   attorney Russel S. Babcock, dated May 22, 2007, re appellant's focus issues for oral argument.
May 31 2007	Filed letter from:   Deputy Attorney General Quisteen S. Shum informing the Court that respondent withdraws the forfeiture argument with respect to Argument 41 (I) of the Appellant''s Opening Brief (AOB 538-543).
Jun 5 2007	Received:   letter from atty Babcock dated May 29, 2007 regarding additional authority.
Jun 6 2007	Cause argued and submitted
Aug 8 2007	Notice of forthcoming opinion posted
Aug 9 2007	Opinion filed: Judgment affirmed in full   majority opinion by Baxter, J. -----joined by George, C.J., Kennard, Werdegar, Chin, Moreno, Corrigan, JJ.
Aug 22 2007	Rehearing petition filed   by appellant. (2,956 words; 16 pp.)
Aug 27 2007	Time extended to consider modification or rehearing   The time for granting or denying rehearing in the above-entitled case is hereby extended to and including November 7, 2007, or the date upon which rehearing is either granted or denied, whichever occurs first.
Oct 24 2007	Opinion modified - no change in judgment
Oct 24 2007	Rehearing denied   The request for modification is granted. The petition for rehearing is denied.
Oct 24 2007	Remittitur issued (AA)
Nov 1 2007	Received:   receipt for remittitur acknowledged by superior court.
Nov 1 2007	Exhibit(s) returned   to superior court.
Nov 7 2007	Received:   copy of appellant's petition for writ of certiorari. (26 pp. excluding appendix)
Nov 13 2007	Received:   acknowledgment from superior court of receipt for exhibits.
Nov 13 2007	Received:   Letter from U.S.S.C., dated and placed on docket November 8, 2007, advising cert petition filed on November 3, 2007 as No. 07-7539.
Nov 21 2007	Received:   DePriest's application for release of files, records and any confidential materials. (not filed; appellate counsel has not been served.)
Nov 29 2007	Motion filed (AA)   application for release of files, records and any confidential materials (by the Federal Public Defender)
Dec 10 2007	Opposition filed   to application for release of files, records, and any confidential materials by respondent.
Dec 19 2007	Compensation awarded counsel   Atty Babcock
Jan 2 2008	Habeas funds request filed (confidential)
Jan 17 2008	Compensation awarded counsel   Atty Babcock
Jan 23 2008	Order filed re habeas funds request (confidential)   re: request filed on January 2, 2008.
Feb 11 2008	Filed:   by petitioner "Response to Respondent's Opposition to Petitioner's Application for Release of Files..."
Feb 19 2008	Certiorari denied by U.S. Supreme Court   (USSC case no. 07-7539)
May 14 2008	Motion for access to sealed record granted   The "Application for Release of Files, Records and Any Confidential Materials," filed November 29, 2007, is granted in part as follows. Petitioner may review and copy the following sealed materials filed in People v. Timothy Lee DePriest, S040527: the portions of the reporter's transcript for hearings held on February 24, 1993 [R.T. 52-53], March 1, 1993 [R.T. 95-100], September 28, 1993 [R.T. 290-297], October 22, 1993 [R.T. 344-352], and January 24, 1994 [R.T. 5123-5127]; pages 20 through 32 and page 37 of the volume of the supplemental clerk's transcript captioned "Re: Hearings," filed in this court on August 16, 2000; the probation report dated May 27, 1994 [C.T. 1890-1909]; the volume of the clerk's transcript captioned "987.9 Material," filed in this court on August 16, 2000; and the unredacted pages of jury selection in an envelope marked "CONFIDENTIAL," filed in this court on August 16, 2000. It is further ordered that only counsel for petitioner, the Office of the Federal Public Defender for the Central District of California, may have access to the sealed portions of the reporter's transcript for the hearings held on September 28, 1993 [R.T. 290-297], and January 24, 1994 [R.T. 5123-5127], pages 20 through 23 and page 32 of the supplemental clerk's transcripts captioned "Re: Hearings," and the unredacted pages from jury selection. Neither the transcripts, any information contained therein, nor any personal information of any juror are to be disclosed to petitioner or any other person. Unless otherwise ordered by this court, all of these sealed documents are to remain under seal, and counsel for petitioner is ordered not to disclose their contents. If counsel wishes to use these materials for any purpose, or to disclose or describe their contents to petitioner or any other person, counsel must apply to this court for permission to do so. To the extent the parties quote, disclose, or describe these materials in any such application or in any other court papers, those papers must themselves be filed or lodged under seal. Petitioner may review and copy the confidential materials in the record in People v. Timothy Lee DePriest, S040527. With respect to any documents in this court's records that are not under seal or otherwise confidential, petitioner's application to copy them is granted. Counsel must supply the personnel and equipment necessary to undertake this examination and copying of the records, which must occur on the premises of the court. Petitioner's application to inspect and copy exhibits admitted at trial, or any other document filed in the superior court, is denied without prejudice because this court's records do not contain these items. Petitioner may apply in the superior court for access to these items.
Mar 16 2009	Related habeas corpus petition filed (post-judgment)   no. S171297.

Briefs
Jan 30 2002	Appellant's opening brief filed
Feb 13 2003	Respondent's brief filed
Oct 30 2003	Appellant's reply brief filed

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