Filed 4/3/03
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S018033
v.
PRENTICE JUAN SNOW,
Los Angeles County
Defendant and Appellant.
Super. Ct. No. A560682
THE COURT:
Prentice Juan Snow was convicted in 1990 in Los Angeles County Superior
Court of the first degree murder of Alfred J. Koll. (Pen. Code, § 187; all further
statutory references are to this code unless otherwise specified.) The jury also
sustained a special circumstance allegation that defendant intentionally killed Koll
to prevent his testimony in another criminal proceeding (§ 190.2, subd. (a)(10))
and an allegation that defendant personally used a firearm in the commission of
the murder (§ 12022.5). The jury set the penalty at death. (§ 190.3.)1 This appeal
is automatic. (§ 1239, subd. (b).) We affirm the judgment.
1
Defendant was previously convicted and sentenced to death on the same
charges. We reversed the earlier judgment in People v. Snow (1987) 44 Cal.3d
216, because of the prosecutor’s misuse of peremptory challenges in jury
selection.
FACTS
Guilt Phase Evidence: Prosecution
Overview
Alfred J. Koll was shot to death in his Pasadena pharmacy on November 3,
1980. Although several witnesses saw the assailant, who wore a motorcycle
helmet with a dark visor, or bubble shield, over his face, none was able to identify
him. The evidence linking defendant to the killing was circumstantial: in addition
to evidence of motive (defendant was facing trial for robbing Koll) and
opportunity (the killing occurred during the lunch recess of the robbery trial, a
short distance from the courthouse), there was evidence defendant owned a
motorcycle and helmet, one of defendant’s fingerprints was found on a bubble
shield police recovered from a Pasadena street on the day of the killing, and the
phone number of the Koll pharmacy was found in a notebook in defendant’s car.
The Robbery Trial
On August 27, 1979, two men robbed Koll of cash at his pharmacy, located
at 939 East Walnut Street in Pasadena. Defendant and James Phillips were
charged with the robbery and with felony assault. At the preliminary examination,
Koll identified defendant as one of the robbers.
On November 3, 1980, the robbery case was scheduled for trial in a
department of the Los Angeles County Superior Court located in the Pasadena
courthouse. Koll had been subpoenaed as a witness and was on call if needed.
During the morning session, before court and counsel started to select a jury, the
prosecutor, Gerald Haney, and defense counsel, Adolfo Lara, discussed a
disposition by plea. Haney offered to drop the assault charge if defendant pled
guilty to robbery. According to Haney, Lara left the room to talk to defendant,
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then returned and said, “My guy wants to think about it over—during the lunch
hour.” Around 11:30 or 11:45 a.m., court recessed until 1:45 p.m.
At the beginning of the lunch break, a bailiff saw defendant make a
telephone call from the hallway just outside the courtroom. Brother Ed Bryant, an
acquaintance of defendant, saw him sometime between 11:30 a.m. and noon in the
hallway. Bryant invited defendant to join him for lunch, but defendant declined,
saying he had something else to do.
While in his office during the lunch hour, Haney learned that Koll had been
shot and killed. He returned to the courtroom around 1:25 p.m. When defendant
and his attorney, Lara, entered, Haney asked Lara whether his plea offer had been
accepted. Lara answered that his client wanted to go to trial. Haney then told
Lara and defendant that Koll had been killed. While Lara reacted with incredulity,
defendant had no reaction at all, “not a flicker of emotion.” A Pasadena police
officer who witnessed the conversation agreed that Lara reacted with surprise and
disbelief, while defendant had “no reaction whatever.”
Police arrested defendant later that afternoon, during a recess in the robbery
trial. When officers sought to test defendant’s hands for gunshot residue in a
conference room just outside the courtroom, defendant asked to use the bathroom
first and, when he was refused, became agitated, yelling, “I got to take a piss, I got
to take a piss.” The residue test proved negative, but, according to an expert, this
result was inconclusive as to whether defendant had fired a gun; residue would be
absent if a shooter wore gloves while firing, and could be washed off the hands or
removed by incidental rubbing.
Eyewitnesses
Koll’s pharmacy, at 939 East Walnut Street, was near the corner of Walnut
and Mentor Avenue. Two witnesses who worked in the Pacific Telephone
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training center at 959 East Walnut were eating lunch outside their building about
12:20 p.m. on November 3, 1980. They noticed a man walking by who, despite
the hot weather, was wearing a denim jacket and pants, gloves, and a blue
motorcycle helmet with a smoky-colored shield covering the man’s face. The man
was about five feet eight inches tall, and the skin of his wrist, which one witness
saw, was dark. The man crossed Mentor and turned the corner onto Walnut. A
few minutes later, these witnesses saw the same man running in the opposite
direction, holding his hand to the helmet as if to keep it from falling off.
In the same building as the pharmacy were a dentist’s office and, directly
across the hall from the pharmacy, a hearing aid center. Between 12:15 and 12:30
p.m. on the day of the killing, the dentist, Loran Kitch, and his
secretary-bookkeeper, Donne Rogers, returned from lunch. They stopped briefly
to speak to Koll, then went into the hearing aid center to talk to Carmen Saad, who
worked there. As they stood talking, Rogers saw a man of medium height,
wearing a denim jacket and pants, gloves, and motorcycle helmet she described as
green or bluish-green walk from the elevator area into the pharmacy. Immediately
thereafter she heard gunshots. The shots were in two groups of two or three, with
a pause in between. The witnesses took cover, but Saad, looking into the
pharmacy, was able to see the gunman’s extended arm and the gun; the man’s
wrist had “dark skin but not real black.” Kitch, while getting a phone with which
to call the police, glanced at the pharmacy and saw an arm extended over the
pharmacy counter. After a few minutes, Kitch and Saad ventured into the
pharmacy. Koll was lying on the floor behind the counter, his legs tangled in a
stool. Kitch could find neither a pulse nor respiration. He called the police again.
4
The Crime Scene
The police dispatcher reported shots fired at the pharmacy between 12:30
and 12:40 p.m. At the pharmacy, responding officers found Koll lying on the
floor behind the counter, dead of multiple gunshot wounds. There were bullet
holes in the plywood door separating the customer area from Koll’s work area, and
splintered wood on Koll’s shirt. Koll held a prescription bottle in his hand, and
capsules were scattered on the floor. The cash register was closed, though the safe
door was ajar. However, Koll’s wife, Gladys Koll, testified that she examined the
pharmacy premises after her husband’s death, checked inventory and cash against
records, and determined that neither money nor any controlled pharmaceuticals
were missing.
Investigators at the scene recovered bullets or fragments under Koll’s leg
and on shelves. Two bullets were recovered from Koll’s body in the autopsy. He
had been shot seven times, including three shots to the back and one to the chest.
An investigator trained in crime scene reconstruction opined, based on the
condition of the crime scene, that one or more shots had been fired from the entry
of the pharmacy, followed by several other shots from a point closer to Koll.
A firearms examiner testified that the projectiles found at the scene and in
the autopsy had all been fired from the same revolver. The bullets recovered from
Koll’s body were identified as .35- or .38-caliber hollow points. Police later found
a .38-caliber bullet casing in defendant’s car and four rounds of .38-caliber target
shooting ammunition in defendant’s apartment.
The Bubble Shield and Helmet Liner
While driving from another part of Pasadena to the crime scene around
12:40 p.m., Pasadena Police Officer John Krayniak noticed a bubble shield from a
motorcycle helmet and a cloth hood or liner lying in the street near the intersection
of Mountain Street and Mar Vista Avenue. When he arrived at the pharmacy, a
5
sergeant told him to go back and retrieve the items. Krayniak and his partners
located the shield and liner about 50 feet from where they had previously seen
them. Krayniak put them each in a brown paper bag and returned to the
pharmacy, where he gave the bags to Investigator David Harris. He did not take
the shield to the courthouse at any time that day.
On cross-examination, Officer Krayniak testified that later on the day of the
killing, he helped prepare an affidavit for a search warrant and reviewed it before
it was presented to the judge. The affidavit, signed by Investigator Harris, stated
that Krayniak had brought the bubble shield to the police department, where
Harris examined it. Krayniak testified, however, that that statement was
erroneous; he gave Harris the shield at the pharmacy, not at the police department.
Investigator Harris testified he received the bubble shield and liner from
Officer Krayniak at the pharmacy about 2:30 p.m. He took the shield back to
police headquarters shortly after 3:45 p.m. and gave it to Joseph Downs, a police
fingerprint technician. Downs confirmed that Harris had given him the shield, in a
brown paper bag, at 3:30 or 3:45 p.m.
Downs found that a latent fingerprint lifted from the inside of the shield
matched an exemplar of defendant’s left middle finger. The identification was
verified by fingerprint experts for the Los Angeles County Sheriff’s Department
and the Los Angeles Police Department.
The bubble shield, which was designed to snap onto a helmet, had small
amounts of blue paint on its snaps. Pasadena Police Officer John Knebel, who had
arrested defendant on unrelated charges in May 1980, testified that at that time
defendant was wearing a motorcycle helmet whose blue color matched that on the
shield snaps.
Pat Booker, who had been living with defendant for several years in the
period before the crime, testified that defendant had owned a motorcycle and a
6
helmet with a bubble shield attached, and that he had at some point spray painted
the helmet, as well as the motorcycle gas tank, blue. The painting was done
outside the rear stairwell of their apartment building, near a metal post set in
concrete. The top of the post was covered in blue paint, which Officer Knebel
testified was similar to the color of the helmet defendant was wearing when
arrested in May 1980. Stephan Schliebe, a criminalist, compared the blue paint
specks found on the bubble shield snaps with the blue paint on the metal post from
defendant’s apartment building. From microscopic examination and spectroscopic
testing, Schliebe concluded the two paints had similar physical and chemical
properties and could have come from the same source.
The Spiral-bound Notebook
Pursuant to a warrant, police searched defendant’s Buick Riviera
automobile. In the visor above the front passenger seat, they found a small
spiral-bound notebook. On one page was written the telephone number of Koll’s
pharmacy. On another page was written the name and address of a store run by
defendant’s stepmother, Jacquelyn Snow, who testified she had given defendant
that information the Sunday before November 3, 1980, and had urged him to come
see her new store. Although at trial Mrs. Snow could not remember whether she
had written the information for defendant or given it to him orally, she told an
investigator prior to trial that she saw defendant as he drove by her church, told
him about the new store, and saw him write the name and address in a small
notebook.
A document examiner compared the telephone number and store address
with an exemplar of defendant’s writing, finding “very good indications” that
defendant had written the telephone number and store address. Downs, the
7
fingerprint technician, recovered latent prints from the inside of the front and back
covers of the notebook, which matched defendant’s exemplar fingerprints.
Travel Time Between Locations
Police Investigator Harris testified to distances and travel times between
various points in Pasadena. From the courtroom where the robbery trial took place
(in the courthouse at 300 East Walnut Street) to the supermarket parking lot where
defendant’s car was found by police later that day was about 150 yards and took
three minutes on foot. From the supermarket to a parking spot near the pharmacy
(at Locust Street and Wilson Avenue) took about four minutes by automobile at
posted speed limits. Walking from that spot to the pharmacy building (at Walnut
Street and Mentor Avenue), ascending to the pharmacy on the second floor by the
stairs, descending by elevator, and walking back to Harris’s car at Locust and
Wilson took seven and a half minutes. By car from Locust and Wilson to
defendant’s apartment building on Washington Boulevard near El Molino Avenue
was 1.9 miles and took about six and a half minutes. From defendant’s apartment
building back to the supermarket parking lot took four minutes to drive. Including
a walk back to the courthouse, the total travel time was 28 minutes. In addition,
Harris timed a route from his parking spot at Locust Street and Wilson Avenue
north on Wilson to Mountain Street, west to Los Robles Avenue, and south back
to the supermarket parking lot. This took seven minutes to drive.
Defendant’s Prior Testimony
Over defense objection, the prosecution introduced parts of defendant’s
testimony from his first trial as part of its case-in-chief.
Defendant denied killing Koll or being at the pharmacy on November 3,
1980. He testified that his robbery trial recessed about 11:45 a.m. on that day. He
talked to his attorney, to Brother Ed Bryant, and to another acquaintance, Curtis
8
Moore, before finally leaving the building around 12:10 p.m. He walked to his
car, which he had parked in the supermarket lot diagonally across from the court
building.
During the afternoon, defendant was asked to take a gunshot residue test
and agreed. While in the conference room for the test, an officer (Knebel) took a
bubble shield from a paper bag and thrust it at defendant, asking if it was familiar
to him. Defendant said it was not and pushed it away. The bubble shield
introduced at trial did not belong to him.
Defendant testified he had owned a blue motorcycle helmet, but it was
stolen months before Koll’s killing. The helmet was blue when he acquired it; he
did not paint it. The spiral-bound notebook was his, but he did not write the Koll
pharmacy telephone number in it.
Guilt Phase Evidence: Defense
Defendant’s attorney in the robbery case, Adolfo Lara, testified that he had
advised defendant that, based on the photographic lineups he had seen, there was a
“misidentification issue” in the case. On the morning of the Koll killing,
defendant wore dress slacks, a sports coat, and a shirt and pullover sweater to
court. Before the lunchtime recess, Lara discussed prosecutor Haney’s plea offer
with defendant, but they reached no final decision. Lara suggested to Haney that
they wait until the afternoon before determining whether the case would be
resolved by plea or trial. He denied, however, telling Haney “[his] man wants the
noon hour to think it over.”
After lunch defendant was dressed as before and was not disheveled or
perspiring. According to Lara, defendant was not present when prosecutor Haney
told Lara of Koll’s death. After learning of it from Haney, Lara told defendant
privately, outside the courtroom.
9
On the day of the homicide, Joe Ingber, an attorney, was trying a criminal
case in the courtroom adjacent to that in which the Koll robbery case was being
tried. During the afternoon, Ingber saw a Pasadena police officer, Eugene Gray,
confer with another officer, and perhaps another person, at the back of the
courtroom. One of the people took a dark motorcycle helmet, with visor, out of a
paper bag. The helmet had nothing to do with the case Ingber was trying.
Two women who worked in the Pacific Telephone training center testified
that on the day of the homicide they went to lunch at a deli across the street from
the pharmacy. As they were returning, around 12:20 or 12:30 p.m., a motorcycle
sped in front of them. The driver, who one witness said was a White male, was
wearing a white helmet with a smoked face shield and a blue windbreaker.
Another woman, who worked on Locust Street about a block from the
pharmacy, saw a man walk by during the noon hour wearing a blue motorcycle
helmet. She told the police she did not think he was Black; he could have been
White or Mexican.
Pasadena Police Officer Denis Petersen was riding with Officers Krayniak
and Gregory Gray when they saw, and then returned to retrieve, the bubble shield
and helmet liner. At a previous hearing, Petersen testified that the officers had
found a face shield and helmet.
Kenneth Carson’s prior testimony was read to the jury. On November 3,
1980, around 6:00 p.m., he went to the Pasadena Police Department with Pat
Booker (defendant’s cohabitant) and another friend. After Booker spent about 30
minutes in the police department building, the three drove to the nearby
supermarket where defendant had parked his car. It was not yet fully dark. The
doors and trunk of defendant’s car were open, and two people were in the back
seat. Carson and his companions abandoned their effort to retrieve the car and
left.
10
Pat Booker was unable to remember details of the day of the homicide. At
a previous hearing, however, she testified that when she came home to the
apartment she shared with defendant on that day, before police arrived to execute
the search warrant, the apartment was in disarray and someone else had been
there.
The defense presented Ramesh Kar, a materials scientist, to challenge the
paint comparison tests performed by the prosecution expert, Stephan Schliebe.
Based on differences in the amounts of zinc, magnesium, silicon and titanium in
samples of paint from the bubble shield snaps and the metal post, Kar concluded
they were not the same paint.
Testifying on his own behalf, defendant denied having either robbed or
killed Koll. On the morning of November 3, 1980, he parked his car in the
supermarket lot across from the courthouse and attended the morning court
session. Just before court recessed, defense attorney Lara and prosecutor Haney
retired to the judge’s chambers. Lara came out and told defendant the prosecutor
had offered a plea bargain. Court then recessed at 11:45 a.m. or noon, and Lara
told defendant to meet him at his office at 1:00 p.m.
Defendant telephoned his home, then talked with Brother Ed Bryant and
Curtis Moore for a few minutes. He went to the supermarket at 12:15 or 12:20
p.m., bought some food and ate it in his car, staying there for 20 or 30 minutes.
About 12:45 p.m., he left on foot for Lara’s office. After they talked, he went up
to the courtroom hallway and waited for court to resume.
During the afternoon session, Lara informed him privately that Koll had
been killed over the lunch hour. Later, he was asked to take a gunshot residue test
and agreed; he did not ask to use the bathroom first. While defendant was in the
attorney conference room for the test, Sergeant Lynn Froistad came in with a
paper bag, which he handed to Officer Knebel. Knebel took out a bubble shield
11
and pushed it at defendant, asking if it looked familiar. Defendant pushed it away
with his left hand.
Defendant further testified that prior to November 3 Lara had told him that
Koll had identified two or three other people as the robber. Defendant had
therefore thought the prosecution had a weak case and had wanted to go to trial for
that reason.
Defendant testified he bought a motorcycle in April 1980 and gave it to his
nephew in August or September of that year. He spray painted the gas tank blue.
His helmet was also blue, but he never painted it; it was blue when he bought it.
Sometime between June and August 1980, the helmet, with its smoky bubble
shield, was stolen from behind defendant’s apartment building.
Defendant did not remember having a .38-caliber cartridge casing in his
car. He did, however, have some such casings, as well as some .38-caliber target
shooting rounds; he collected these at the firing range, kept them in a locking
ammunition bag, and traded them back to the range for .22-caliber ammunition.
Defendant acknowledged owning the small spiral-bound notebook; it was
of a type he used in his home darkroom to record color formulas. He never put
any of the notebooks in his car, however, and he never wrote the telephone
number of the Koll pharmacy in the notebook.
On cross-examination, defendant was impeached with three felony
convictions: his 1984 conviction for the Koll pharmacy robbery, another robbery
conviction in 1971, and an attempted second degree burglary conviction in 1975.
Penalty Phase Evidence
The three felony convictions introduced to impeach defendant’s guilt phase
testimony, as well as a felony assault conviction arising from the 1979 Koll
robbery incident, were also introduced at the penalty phase. In taking notice of the
12
1984 robbery conviction, the court also took notice that the personal firearm use
allegation in that case was found not true.
The underlying facts of the 1971 robbery conviction and the 1979 Koll-
incident assault were proven. In a 1970 robbery, defendant and another man held
up a Fresno motel at gunpoint, taking money from the till as well as from the night
clerk’s wallet. Defendant, who did not display a gun, cut the clerk with a knife.
In the 1979 incident, the preliminary hearing testimony of Edwin Dillhoffer, who
had died by the time of trial, was read. Dillhoffer was in the lobby outside Koll’s
pharmacy. A large man jumped over the pharmacy counter and hit him in the
head with what appeared to be a black sock. He was immediately followed by a
smaller man, who knocked Dillhoffer down, breaking his hip.
Evidence was also introduced of an unadjudicated 1980 incident of
violence. Leroy Smith testified that after defendant’s sister had an argument with
Smith’s daughter, defendant left in his car, going to another sister’s house. Smith
followed in his own car. Smith parked in the driveway and started to get out of his
car, but defendant started shooting a handgun in his direction. Smith got back in
the car, took cover behind the dashboard, and backed out. He was not injured, but
several shots hit his car.
The defense introduced no evidence at the penalty phase.
DISCUSSION
Guilt Phase Issues
I. Sufficiency of the Evidence
Defendant contends the evidence at trial was insufficient to justify his
conviction for Koll’s murder and that his conviction therefore violated the due
process clause of the Fourteenth Amendment to the United States Constitution.
13
The standard of review is well settled: On appeal, we review the whole
record in the light most favorable to the judgment below to determine whether it
discloses substantial evidence—that is, evidence that is reasonable, credible and of
solid value—from which a reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 317-320;
People v. Johnson (1980) 26 Cal.3d 557, 578.) “ ‘[I]f the verdict is supported by
substantial evidence, we must accord due deference to the trier of fact and not
substitute our evaluation of a witness’s credibility for that of the fact finder.’ ”
(People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) “The standard of review is the
same in cases in which the People rely mainly on circumstantial evidence.
(People v. Bean (1988) 46 Cal.3d 919, 932 [251 Cal.Rptr. 461, 760 P.2d 996].)
‘Although it is the duty of the jury to acquit a defendant if it finds that
circumstantial evidence is susceptible of two interpretations, one of which
suggests guilt and the other innocence [citations], it is the jury, not the appellate
court which must be convinced of the defendant’s guilt beyond a reasonable
doubt.’ ” (People v. Stanley (1995) 10 Cal.4th 764, 792-793.)
The evidence, though circumstantial, amply supported defendant’s
conviction for murder. Koll was killed in a deliberate manner suggesting
execution, not a robbery attempt, indicating his assailant had strong preexisting
reasons for wanting him dead. Defendant had such a motive, for Koll had been
the only person to identify him as a robber of the pharmacy at the preliminary
examination. The only other person who the evidence showed had a motive to kill
Koll, James Phillips, was at an all-day family funeral on the day of the killing.
Defendant had no corroborated alibi for the time of the killing, and there was
sufficient time during the noon recess for defendant to have driven from the
supermarket parking lot to the pharmacy, shot Koll, and driven to his apartment
and back to the supermarket lot. According to prosecution witnesses, defendant
14
appeared unsurprised when told of Koll’s death shortly after it happened and
demanded an opportunity to use the washroom before taking a gunshot residue
test.
The killer hid his face behind a blue motorcycle helmet with a smoky
bubble shield, both items defendant had owned and used in the recent past. While
fleeing the scene, the killer was seen to hold one hand to the helmet as if to keep it
on. Shortly after the crime, a smoky bubble shield with defendant’s fingerprint on
it was found in the street, along a route lying generally between the pharmacy and
defendant’s apartment. In addition to defendant’s fingerprint, the bubble shield
was linked to defendant through evidence that he had painted his helmet blue and
that paint found on the snaps of the shield was the same color as, and in some
physical respects similar to, paint found on a metal post near where defendant had
painted the helmet.
Although the .38-caliber revolver with which Koll was killed was not
found, defendant possessed .38-caliber ammunition, suggesting he owned or had
access to a handgun that could fire such ammunition. Perhaps most damning, the
telephone number of Koll’s pharmacy was written in defendant’s spiral-bound
notebook. Although defendant denied having written it, a prosecution handwriting
expert found good indications he had, and the defense offered no other explanation
for the number’s presence in the notebook.
Defendant notes that he and his attorney in the robbery case, Lara, testified
that Koll’s identification of him as one of the robbers was vulnerable to challenge
at trial; he argues the evidence of motive was therefore insufficient. Nonetheless
Koll did identify him at the preliminary examination and was the only witness to
do so. The jury could reasonably conclude that defendant did not want to take the
risk that Koll’s identification would be credible to a jury. Similarly, defendant
emphasizes that his fingerprints were not found at the scene of the crime and that
15
he offered an explanation for his fingerprint on the bubble shield. But the jury was
not obliged to believe that explanation and could reasonably have concluded that
the bubble shield belonged to defendant. Along the same lines, the evidence was
in conflict as to whether defendant was present when prosecutor Haney told
defense attorney Lara that Koll had been killed, giving Haney an opportunity to
observe defendant’s lack of a visible reaction. The jury, again, could reasonably
credit Haney’s recollection of this event over Lara’s and defendant’s. This court
cannot reweigh such questions of credibility.
The two cases defendant cites as similar to his, People v. Trevino (1985) 39
Cal.3d 667 and People v. Blakeslee (1969) 2 Cal.App.3d 831, are readily
distinguishable. In People v. Trevino, there was no evidence of a motive for
murder on the part of the defendant (Rivas), who was a friend of the victim; the
conviction rested entirely on an equivocal eyewitness identification and a
fingerprint from the defendant in the victim’s apartment, where he had previously
been a guest. (Trevino, supra, at pp. 676, 696-697.) Here, the evidence of motive
was strong, there was no innocent explanation for the presence of the pharmacy
telephone number in defendant’s notebook, and defendant’s explanation of his
fingerprint on the bubble shield was contradicted by several prosecution witnesses.
In People v. Blakeslee, the evidence established only that the defendant and
her brother had both quarreled with the victim, who was their mother (the brother
having done so on the night of the killing), that both had access to a rifle
(belonging to the brother), and that the defendant had offered police a false
account of her movements (intended, she testified, to protect the brother). The
evidence was thus at least as consistent with the brother’s guilt as with the
defendant’s. (Blakeslee, supra, 2 Cal.App.3d at pp. 837-840.) Here, defendant
had a virtually unique combination of motive and opportunity to kill Koll and was
16
connected by other circumstantial evidence (the notebook and fingerprint, and
ownership of a blue helmet and smoky bubble shield) to the crime.
A reasonable jury could find beyond a reasonable doubt that the
circumstantial evidence proved defendant’s guilt.
II. Defendant’s Faretta Motion
On April 18, 1988, defendant moved to relieve his appointed attorneys,
Halvor Miller and H. Clay Jacke, and represent himself. On April 22, before the
court ruled on the motion, defendant withdrew it. Defendant now maintains the
withdrawal was ineffective because it was motivated by confusion over whether
the court was willing to appoint one of his current attorneys as advisory counsel
and by counsel’s unfulfilled promise to try to get him cocounsel status. He
contends he was thereby deprived of his right of self-representation under Faretta
v. California (1975) 422 U.S. 806.
Defendant first moved for self-representation on April 18, 1988, but the
request was put over to April 21. At a hearing on that day, defendant explained
that although he wanted to proceed in propria persona, he wished to keep attorney
Jacke as advisory counsel. The court indicated that if it relieved Miller and Jacke,
it was unlikely to appoint either as advisory counsel. The court stated it was “not
reasonable to be relieved, the attorneys, then have him come back as advisory
counsel.” If advisory counsel were needed, the court would decide who to
appoint, and “[i]t may or may not include these two attorneys.” The matter was
continued to the next morning.
On April 22, the court stated, inconsistently with the previous day’s record
of proceedings, that it had told defendant the previous day that “in the event that
he represented himself and he wished advisory counsel, that I would appoint
advisory counsel and it would be between Mr. Jacke and Mr. Miller. It was up to
17
him to decide.” The court, however, noted it was unlikely to reappoint them if, at
a later time, defendant decided he again wanted an attorney. Defendant thanked
the court for “making it clear to me what its intentions were,” but stated he now
“would like to withdraw the motion to proceed in pro per.” A short time later, the
court again assured defendant that if he did represent himself and wanted advisory
counsel, the court would appoint Jacke or Miller as such. The court would not,
however, reappoint Jacke and Miller as defendant’s attorneys. Defendant said he
understood, though the court’s intentions regarding advisory counsel appeared
different than on the previous day. Defendant continued, “nevertheless, my
feeling is the court has determined it would not appoint Mr. Jacke or Mr. Miller as
my attorney. That’s when I decided not to continue with pro per status.”
The record makes plain that defendant’s decision to withdraw his Faretta
motion was not the product of confusion regarding the court’s willingness to
appoint Jacke as advisory counsel. Though on April 21 the court had suggested
such an appointment was unlikely, on April 22 the court twice expressly stated
that if defendant represented himself he could choose either Jacke or Miller as
advisory counsel. Defendant twice indicated that he understood the court, but
nonetheless wished to withdraw the motion. It was the court’s unambiguously
expressed unwillingness to consider future reappointment of Jacke and Miller as
defendant’s attorneys should he desire to terminate his self-representation, rather
than its intentions regarding advisory counsel, to which defendant alluded in
explaining his decision not to seek in propria persona status.
In withdrawing his motion, defendant also noted that he understood from
counsel that the court had indicated it was amenable, as an alternative to self-
representation, to “providing [him] some material to help prepare the case.” The
court agreed that appointed counsel could obtain “certain law textbooks” and other
unspecified materials and that the court, or the department that had appointed
18
counsel, could make an order allowing defendant to have such materials. Counsel
subsequently sought, and in part received, permission from the court for defendant
to have law library access and to keep research materials and a typewriter in his
jail cell.
Later—after the Faretta motion was withdrawn—defendant said that, in
addition, he “was under the impression that I was entitled to some type of legal
status considering I was a sentenced prisoner . . . .” The court observed that he
was a state prisoner only as to his robbery conviction, since the murder conviction
had been reversed and was to be retried. This issue was not resolved; the
discussion ended with defense counsel stating they would “file the appropriate
motion at the appropriate time.” It appears no motion for special legal status was
filed.
Defendant claims the withdrawal of his Faretta motion was invalid because
it was induced in part by counsel’s misrepresentation. We disagree. The record
shows defendant twice stated he wished to withdraw his motion before counsel
indicated they would file a motion regarding prisoner status. Defendant in no way
indicated that he intended to condition the withdrawal on obtaining such status,
and the record does not reflect any attempt to renew his Faretta motion when
counsel failed to file a motion. Defendant may have been satisfied with the order
allowing him access to research materials, or he may have become convinced that
he was not entitled to state prisoner status because his conviction had been
reversed. There is thus no indication in the record that the possibility of such
status induced defendant to withdraw his request for self-representation.
III. Denial of Defense Continuance Requests
Defendant contends the trial court’s denial of defense requests for
continuances prior to and during trial deprived him of the effective assistance of
19
counsel (in violation of the Sixth Amendment to the United States Constitution), a
fair and reliable penalty verdict (Eighth Amendment), and a fair trial (Fourteenth
Amendment). We disagree. Continuances in criminal cases may only be granted
for good cause. (§ 1050, subd. (e).) While a trial court may not exercise its
discretion over continuances so as to deprive the defendant or his attorneys of a
reasonable opportunity to prepare (People v. Sakarias (2000) 22 Cal.4th 596, 646;
People v. Fudge (1994) 7 Cal.4th 1075, 1107), the court’s rulings in this case had
no such effect.
Defendant complains of the trial court’s treatment of defense motions for
continuance on four occasions before, during and after trial. We consider each
occasion separately.
A. Pretrial continuance denied March 27, 1990
This court’s remittitur, upon reversal of defendant’s first conviction, was
filed in the superior court on January 26, 1988, and the matter was placed on
calendar for March 7, 1988. On that date, the court reappointed Halvor Miller and
Elizabeth Harris, defendant’s attorneys in the first trial, to represent him on retrial.
The case was continued to March 30 for pretrial conference. On March 30, Ms.
Harris was relieved, and H. Clay Jacke was appointed as Miller’s cocounsel. The
next day, at defense request, the case was continued to April 18 for further pretrial
proceedings.
On April 18, 1988, the parties made their first appearance before the
Honorable Jack Tso, who would be the trial judge. Judge Tso indicated he was in
trial on another capital case and would not be available until the end of May.
Defendant made his Faretta motion, which was withdrawn on April 22 as
discussed ante, in part II, and, with the agreement of both parties, the court set a
pretrial conference date of June 24. On June 10, June 24, July 22, August 19, and
20
September 9, 1988, various defense motions were made and heard. On September
9, the court denied defendant’s motion to recuse the district attorney’s office and,
with the agreement of both parties, set a further pretrial/trial setting conference for
December 13, 1988, anticipating that jury voir dire would begin early in January
1989.
On November 29, 1988, the defense made a written motion for
continuance, asserting that counsel needed more time for factual investigation. At
the hearing on December 13, attorney Miller asked for a March 24, 1989, date,
which he thought “would be ample time” to complete the defense preparation.
With agreement of both parties, the court set a readiness conference date of March
1, 1989, which, with a 20-day time waiver, would mean beginning jury selection
on March 21.
On March 1, 1989, defendant moved for a further continuance, asserting
that attorneys Miller and Jacke expected to be engaged in other trials through
April and June, respectively. Miller suggested July 28 as a trial date. Although
disturbed that counsel had allowed other trial commitments to interfere with the
agreed date for trial in this case, the court granted the continuance to July 10,
1989, with a 10-day time waiver. The court ordered defense counsel not to
become engaged in any other proceedings that would interfere with this trial.
On May 26, 1989, the court held a status conference. The prosecutor stated
that the People would be ready to begin trial proceedings on July 10, the date
previously set. Defense attorney Miller, however, stated the defense would not be
ready because (1) the guilt phase investigation was not complete, (2) the penalty
phase investigation had not been started, (3) cocounsel Jacke was “continuously
engaged” in other trials and had been unable to assist, and (4) Miller and Jacke had
planned a joint vacation (at a legal conference in China) for late August through
early September. Jacke said he was representing a defendant in the “Ninja murder
21
case” who would not waive time; he did not expect to finish that trial until late
November 1989. The court suggested that Jacke consider resigning as counsel and
that Miller consider obtaining new cocounsel. The court ordered counsel back for
a trial setting conference on June 28.
On June 28, 1989, Miller stated he was still not ready because Jacke had
been unable to help with trial preparation. Jacke not being present, the matter was
put over to June 30. On that date, Jacke again explained that he had unexpectedly
had to go to trial in another case, which he expected to be finished by November.
Miller suggested a “firm date” for trial would be sometime in January 1990, and
Jacke suggested the court hold a trial setting conference in November 1989. The
court granted the continuance, setting a date of November 17, 1989, for the trial
setting conference. Counsel were ordered not to become engaged in any other
trials after November 17.
On November 17, 1989, the court filed and read a letter from defendant
complaining of the delay in beginning his retrial and indicating that another
attorney might be willing to take over for Jacke. Both attorneys then asked to be
relieved of their appointments, though Miller indicated he could begin trial in four
or five months with the prospective new cocounsel, Charles Maple. Jacke
explained that he would not be done trying his current capital case until February
or March of 1990. The court relieved Jacke, agreed to Maple’s appointment, and
continued the matter to February 27, 1990. Miller was ordered not to become
engaged in any other case.
On February 27, 1990, the court pushed counsel to begin trial in March.
Miller protested that he had a conflict with another case (People v. Louis) in which
he was also being ordered to trial, and that he could not be ready to try Snow’s
case by March 13. Cocounsel Maple suggested March 27 or March 30. The court
22
set trial to begin with jury selection on March 27 and ordered the clerk to notify
the jury commissioner that the court would need 100 potential jurors on March 27.
On March 13, 1990, Miller moved for a continuance, asserting that he and
Maple needed additional time to prepare for trial. On the same day, he filed letters
to Judge Tso and to the Honorable Judith Chirlin, also of the Los Angeles County
Superior Court, the trial judge in People v. Louis, complaining that because of
“competing orders” in the two cases he was being forced to try to prepare both at
once. On March 21, Maple filed a continuance motion, asserting that more time
was needed because the prosecution apparently had some photographs, taken in
connection with the paint analysis, that had not been provided to the defense, and
because the defense wished to conduct its own analysis of the paint samples.
On March 23, 1990, the court observed that Judge Chirlin had continued
her capital case, so Miller was available to try the Snow case. The court also
ordered the prosecution to give defense counsel access to any “lab photos and
results.”
On March 27, 1990, the date set for trial, Miller announced “not ready.”
He declined the court’s invitation to elaborate on his claim that he needed more
time for preparation. The court denied Miller’s motion, ruling that the “blanket
statements” in Miller’s written motion as to the need for further preparation time
were inadequate to justify a further continuance. After eliciting the prosecutor’s
assurance that all paint photographs in his possession had been given to the
defense and that the defense could contact the prosecution expert to determine if
there were more photographs, the court also denied Maple’s motion; the court
observed that the defense could continue its investigation of the paint samples, as
to which the court would appoint an expert if the defense desired, and that if
necessary a short continuance in connection with the expert analysis would be
considered.
23
We conclude the denial of continuance motions on March 27, 1990, was
not an abuse of the court’s discretion, good cause for the requested continuance
not having been shown (§ 1050, subd. (e)), nor did it deprive counsel of a
reasonable opportunity to prepare the defense. On that date the case had been
pending in the superior court for 26 months. The court had already granted
numerous and lengthy continuances at defense request. Defendant had repeatedly
waived his right to a speedy trial, but had also expressed frustration at counsel’s
continual need for continuances.
Attorney Miller, who had previously defended defendant on these same
charges, had been reappointed over two years before, on March 7, 1988. Miller
had previously stated that he expected to be ready for trial in March 1989 and
again in July 1989. In November 1989, he stated that he could be ready with new
cocounsel, Maple, in March or April 1990. The court did not abuse its discretion
in failing to credit Miller’s bare assertion, which he declined to explain further,
that he needed more preparation time.
Attorney Maple was more recently appointed, but had had several months
to acquaint himself with the evidence. Maple did not indicate that he was
personally unprepared for trial; rather, his motion rested on the assertion that the
paint samples, of which the prosecution had obtained an expert comparison
analysis, and related photographs, had not yet been made fully available to the
defense. The court ordered all results and photographs produced; indicated it
would, if desired, appoint a defense expert to analyze the samples; and would
consider a request for a short continuance on these grounds if and when the issue
arose. In the absence of concrete information as to the length of time a defense
expert analysis would take, the court did not abuse its discretion in beginning the
lengthy capital jury selection process on March 27.
24
Defendant cites Little v. Superior Court (1980) 110 Cal.App.3d 667 for the
proposition that a trial court may not lawfully require counsel to proceed to trial
unprepared. In Little, the deputy public defender assigned to represent the
defendant was unable to appear at the preliminary hearing because of a
calendaring error. (Id. at p. 670.) A supervising deputy appeared, explained the
problem, and moved for a continuance. The prosecutor, who had witnesses
summoned for that date, objected, and the court denied the continuance despite the
supervisor’s representation that he had never talked to the defendant and was
completely unfamiliar with the case. (Ibid.) Little is obviously not on point;
defendant here began trial with two attorneys, one of whom had defended him
before on the same charges and had been reappointed more than two years earlier,
the other of whom had been appointed four months earlier.
Nor does Hughes v. Superior Court (1980) 106 Cal.App.3d 1, upon which
defendant also relies, support his position. In Hughes, the appellate court
overturned a contempt order made against a defense attorney who refused to
participate in a trial for which he was unprepared. The attorney, a deputy public
defender, had been assigned to two cases set for trial on the same Monday. He
guessed incorrectly which trial would actually go forward, used the weekend to
prepare that case, and then was denied a continuance on the other, unprepared
case. (Id. at p. 3.) The limited record before the appellate court did not indicate
why he had announced ready on both cases when he was not prepared on one of
them; nor, as far as the appellate opinion reflects, did it indicate whether he had
had a significant period of time prior to the weekend before trial in order to
prepare. (See id. at pp. 5-6.) In the present case, attorney Miller had more than
two years to prepare to represent defendant. He had repeatedly been warned not to
take on other trial obligations and was not in fact forced to trial in two cases
simultaneously; rather, he was granted continuances in the Louis case, which freed
25
him to finish preparation for, and go to trial on, defendant’s case. The trial court
was not obliged to credit his claim that because he did not know which case was
actually going to trial he could not prepare either. The court did not abuse its
discretion, or deny Miller a reasonable opportunity to prepare for trial, in refusing
to grant an additional continuance on March 27, 1990.
B. Trial continuance denied April 19, 1990
On April 19, 1990, during jury selection, defense counsel moved orally for
a continuance, asserting they needed 45 to 60 days to finish the expert paint
comparison work. In an in camera hearing, counsel asserted that the prosecution
expert who had previously compared the bubble shield and post paints, Stephan
Schliebe, had been uncooperative as to providing his data and samples to the
defense and that, once the defense had these materials, their own examination
would take up to 30 days.2 The court suggested Schliebe be subpoenaed to appear
the next day in order that the court could order him to produce any needed
materials. The court further indicated that it considered excessive the defense
estimate of time needed to complete the expert examination and that no
continuance would be granted on that basis. After the conclusion of this
confidential hearing, defense counsel stated that they intended to seek writ relief in
the Court of Appeal.3
Later that day, as voir dire was completed and the court prepared to swear
in the jury, defense counsel moved to defer swearing the jury until the defense writ
2
The transcript of this hearing was originally filed under seal. Both parties
having received notice, and neither having objected, the transcript is hereby
ordered unsealed. (Cal. Rules of Court, rule 12.5(f)(2).)
3
The Court of Appeal summarily denied the petition on April 23, 1990. This
court denied review on May 7, 1990.
26
petition was heard. The court denied that motion. The court also denied a
prosecution request for a three-day continuance to “get my witnesses and
coordinate the evidence,” noting that “you’ve had two years to be able to get
them.”4
The court did not, by these rulings, abuse its discretion or deprive the
defense of a reasonable opportunity to prepare. Counsel’s bare assertion that they
would need 30, 45, or 60 days to complete their examination of the paint samples
did not constitute good cause for such a lengthy continuance, especially as the
prosecution had not even begun to present its own case. Nor does the record
indicate the defense was actually prejudiced by the denial of a lengthy continuance
for examination of the paint materials.5 Nor, finally, has defendant even
attempted to demonstrate he was prejudiced by the trial court’s swearing in the
jury panel before his writ petition was heard and decided.
C. Trial continuance granted June 12, 1990
The jury returned its guilt verdict and special circumstance finding on
June 4, 1990. On request of defense counsel, the court ordered the penalty trial to
begin on June 12. On June 11, however, attorney Miller filed a continuance
motion asserting that counsel needed additional time for penalty investigation and
consultation. At a hearing on June 12, Miller estimated they needed 30 to 45 days
4
Defendant incorrectly states that this request for a three-day continuance
was made by the defense.
5
When, on Tuesday, May 8, 1990, the prosecution called its expert,
Schliebe, defense counsel Maple protested that the defense had not yet completed
its examination and was therefore unprepared to cross-examine Schliebe. At the
court’s suggestion, Schliebe’s testimony was postponed to Monday, May 14.
Maple agreed that was satisfactory, noting that the defense evaluation of the
evidence would be complete by then.
27
to complete their investigation. Despite its “astonish[ment]” that counsel, having
previously represented defendant in a penalty trial and having been reappointed
for more than two years, was still unprepared, the court granted the motion for
continuance, setting July 17 for the start of the penalty trial.
The penalty trial began on July 17, 1990, with presentation of the People’s
opening statement and evidence. After the prosecution rested, the defense also
rested without giving a statement or presenting any evidence. Defense counsel did
not at either time seek an additional continuance or assert they were unprepared
for the penalty trial. But on appeal, apparently claiming he should have received a
longer continuance before the penalty phase, defendant attributes his trial
attorneys’ inaction during the penalty phase to the court’s earlier denials of
continuances for trial preparation.
We must reject this contention as completely unsupported by the record. In
addition to the more than two years counsel Miller had already represented
defendant, the defense was given 42 days (from June 5 to July 17) after the close
of the guilt trial to prepare for the penalty trial. That time included a continuance
requested by the defense and granted by the court. At the penalty trial, counsel
did not request more time, nor did counsel claim that their failure to call any
penalty witnesses or present other mitigating evidence was due to lack of
preparation. There is thus no basis for the claim that the court’s earlier denial of
continuances deprived counsel of a reasonable opportunity to prepare for the
penalty phase.
D. Posttrial continuances denied September 21 and 25, 1990
The jury returned its penalty verdict on July 19, 1990. The court indicated
it would set August 16, 1990, as the date for hearing the automatic motion for
28
modification of verdict and for sentencing, but at the request of defense counsel
set those matters instead for August 23, a week later.
On August 10, 1990, asserting that the defense needed additional time to
prepare a motion for new trial based on the discovery of new evidence, defense
counsel Miller filed a motion for continuance of the sentencing and modification
hearing. On August 23, the court granted that motion, setting a new date of
September 21.
On September 20, Miller again filed a motion for continuance, again
asserting, without particulars, that more time was needed to investigate newly
discovered evidence. On September 21, the court denied the motion for failure to
give two days’ notice and for lack of specific facts showing good cause. Because
Miller was absent due to a fire in his office building, however, sentencing and the
modification motion were continued to September 24.
On September 24, however, Miller was again absent, this time because of a
family emergency. Attorney Maple declared himself unprepared to make the
motion for new trial. The court put the matter over to the next day.
On September 25, Maple renewed the earlier continuance motion. Maple
explained that in order to corroborate the defense theory of a police conspiracy to
frame defendant (apparently by getting his fingerprint on a bubble shield similar to
that worn by the killer), the defense had been seeking, but had had difficulty
obtaining, Pasadena Police Department reports and hospital records relating to
automobile accidents discussed on a police dispatch tape. These reports and
records would, the defense hoped, show the true origin of the bubble shield
introduced at trial. The court again denied the continuance.
We conclude the court’s ruling did not deprive the defense of a reasonable
opportunity to prepare a new trial motion. As the prosecutor noted in opposing the
continuance, the defense theory of a police scheme to plant evidence against
29
defendant was of long standing (see People v. Snow, supra, 44 Cal.3d at p. 220),
and counsel failed to explain why the records now under investigation had not
been investigated in preparation for defendant’s first trial or in the two and one-
half years since Miller was reappointed to defend defendant in the retrial. Nor did
counsel’s explanation demonstrate that a continuance was likely to be useful (see
People v. Frye (1998) 18 Cal.4th 894, 1013); it was far from clear, that is, that a
reasonable continuance would allow the defense to obtain records tending to show
that the police officers’ testimony about finding the bubble shield was false and
that the shield actually had been obtained from some accident scene. There was
no good cause to continue the modification and sentencing hearing.
IV. Appearance of Judicial Bias
Defendant contends that the trial court’s hostile and disparaging comments
during trial exhibited such a degree of bias against defense counsel, and so
interfered with counsel’s examination of witnesses, as to deprive defendant of a
fair trial, the effective assistance of counsel, and a reliable penalty determination.
We disagree. First, because counsel failed to object to, or seek a jury admonition
regarding, any of the instances of alleged judicial intemperance, the issue is
waived on appeal. (People v. Fudge, supra, 7 Cal.4th at p. 1108; People v. Wright
(1990) 52 Cal.3d 367, 411.) Moreover, the claim is without merit; though the trial
judge, the Honorable Jack Tso, was sometimes impatient with the attorneys for
both parties, and though a few of his exchanges with defense counsel were
especially contentious, neither separately nor together do these instances of harsh
language amount to an unconstitutional display of judicial bias.
Although the trial court has both the duty and the discretion to control the
conduct of the trial (People v. Fudge, supra, 7 Cal.4th at p. 1108), the court
“commits misconduct if it persistently makes discourteous and disparaging
30
remarks to defense counsel so as to discredit the defense or create the impression it
is allying itself with the prosecution” (People v. Carpenter (1997) 15 Cal.4th 312,
353). Nevertheless, “[i]t is well within [a trial court’s] discretion to rebuke an
attorney, sometimes harshly, when that attorney asks inappropriate questions,
ignores the court’s instructions, or otherwise engages in improper or delaying
behavior.” (United States v. Donato (D.C. Cir. 1996) 99 F.3d 426, 434.) Indeed,
“our role . . . is not to determine whether the trial judge’s conduct left something
to be desired, or even whether some comments would have been better left unsaid.
Rather, we must determine whether the judge’s behavior was so prejudicial that it
denied [the defendant] a fair, as opposed to a perfect, trial.” (United States v.
Pisani (2d Cir. 1985) 773 F.2d 397, 402.)
Defendant cites several minor instances assertedly showing the court’s
impatience with, or irritation toward, counsel.6 But such manifestations of friction
between court and counsel, while not desirable, are virtually inevitable in a long
6
Some examples: During voir dire, defense counsel made an innocuous,
offhand comment to the prospective juror. The court said: “Mr. Maple, let’s not
go into that. Your next question, please.” Also during voir dire, the court asked
Maple the relevance of one of his questions, then, before he could answer, said,
“Let’s go on to another subject matter.” The court interrupted defense counsel’s
cross-examination of a police officer, warning, “Don’t argue. Ask your question,
please. Don’t argue with the witness.” When counsel, cross-examining another
prosecution witness, twice asked about the contents of the witness’s conversation
with the victim on the day of the killing, the court admonished counsel, “That is
covered already. You said that day. It’s been asked and answered. Your next
question, please.” During defense counsel Maple’s examination of a defense
witness, the court asked the lead attorney, Miller, whether he wanted to take over
the examination, noting, “We’ve been on this witness for almost 34 minutes.”
Defendant lists several more examples, which may pass without individual
comment. Also not requiring comment, because they do not support defendant’s
contention that the court displayed bias to the jury, are remarks the court made
outside the jury’s presence.
31
trial. The trial court frequently addressed the prosecutors in an equally brusque
manner.7
Defendant maintains the court “frequently disparaged and upbraided
defense counsel” during counsel’s examination of witnesses. Upon examination,
we conclude that, whether or not the court’s evidentiary ruling in each cited
instance was correct,8 in no case did the court display overt bias against the
defense so as to deprive defendant of a fair trial. In asking defense counsel
whether a line of questioning, on recross-examination of the prosecution
fingerprint examiner, was within the scope of redirect, the court neither disparaged
counsel’s efforts nor prevented counsel from pursuing cross-examination.
Similarly, when the court told counsel not to “argue” with a police investigator,
7
For example, the court interrupted prosecutor Holliman’s examination of a
witness to warn, “Don’t testify. She’s already testified to that. Don’t repeat
oneself.” The court rephrased Holliman’s question to another witness, asking
rhetorically, “Why don’t we have the witness testify rather than the attorneys?”
The court instructed prosecutor Lutes, “First of all, lay a foundation so the jury
knows what we are talking about.” When the court sustained a defense objection
to one of Holliman’s questions, he asked to approach the bench; the court refused,
saying only, “There is no need to approach. You may continue.” During defense
examination of a witness, prosecutor Lutes asked for clarification of an evidentiary
ruling. The court responded simply, “You will interpose objections at the proper
time. I will rule upon the objections.” When Lutes then tried to state an objection,
the court cut him off, saying, “There is no question pending.” When Lutes began
a question to an expert witness with, “Now, my background isn’t in chemistry
. . . ,” the court interrupted to warn, “Let’s not have any prefaces, please.” When
Lutes asked a witness to read a newspaper article on the stand, the court
admonished him, “Counsel, why didn’t you have this witness read the article out
of the presence of the court and jury? This is consumption of court time. It’s not
necessary.”
8
Claims of error in the court’s rulings on objections during defense
examination of witnesses are made in defendant’s claims VI and VII and are
discussed post, in parts VI and VII.
32
defense counsel rephrased and re-posed his question without objection or court
interference. Again, when the court interrupted counsel’s cross-examination of a
prosecution witness who had heard the gunshots, urging counsel to “get right to
the issue,” counsel complied but eventually returned to the interrupted line of
questioning. Whether or not the court’s rulings on cross-examination of Stephan
Schliebe, the prosecution paint expert, were correct (see post, pt. VII), the court,
contrary to defendant’s claim, did not “berate” counsel in making them. Counsel’s
cross-examination was extensive, technical, and at points confusing, and the
court’s occasional impatience with repetitious or vague foundational questions did
not convey a judicial bias against the defense.
On redirect examination of Adolfo Lara, defendant’s attorney in the
robbery trial, confusion arose over two aspects of the prosecutor’s
cross-examination: On cross, Lara had been confronted with prior testimony in
which he described his reaction to the news of Koll’s death as “disbelief,” and had
also been denied an opportunity to explain why, once he was convinced Koll
really had been killed, he was not “shocked.” On redirect, defense counsel
attempted to read additional prior testimony going to the question of what Lara
meant by “disbelief.” The court, apparently misrecalling the cross-examination,
thought Lara had wanted to explain his “disbelief” but had been denied that
opportunity; the court told defense counsel, instead of reading the testimony,
simply to ask Lara what he meant by “disbelief.” Lara then eliminated the source
of the confusion by testifying that he was using “shock” and “disbelief” in the
same sense, i.e., to convey that when the robbery prosecutor, Haney, told him Koll
had been killed, Lara at first thought Haney was either joking or testing his
reaction. The court’s repeated direction that counsel ask Lara what he meant
rather than read his prior testimony betrayed judicial confusion—which was soon
dispelled by Lara’s testimony—rather than bias.
33
Defendant complains of the court’s treatment of counsel during the direct
examination of Ramesh Kar, the defense’s paint comparison expert. Kar’s
testimony begins on page 4306 of the reporter’s transcript. Not until page 4394
did defense counsel ask Kar to give his opinion as to whether the paints on the
metal post and bubble shield matched each other. Part of the intervening
testimony involved the effect of “Bremstrahlung radiation” on electron
microscopy of materials. Kar testified that the examiner must adjust for the
Bremstrahlung effect, which can mask the presence of certain elements and create
spurious indications of other elements. When counsel further asked Kar to
“illustrate” the Bremstrahlung effect using a projected graph, the court barred the
illustration on its own motion, saying, “I don’t need it illustrated. The jury doesn’t
require it. Let’s get the matters that are relevant.”
Kar then testified that the prosecution’s paint comparison expert had
apparently not adjusted for the Bremstrahlung effect. When counsel asked Kar if
the prosecution examiner’s unadjusted data would lead Kar to the same conclusion
he had independently reached about the materials, the court objected that counsel
was assuming facts not in evidence: no conclusion about the materials had yet
been elicited from Kar. The court told counsel, “Now, I don’t know what his
conclusion pertains to, so why don’t we get to it, counsel, please.” As defense
counsel began to lay the foundation for Kar’s opinion, however, the court
periodically interposed, or solicited from the prosecutor, objections to the phrasing
of certain questions. After the court again urged counsel to get to “the bottom
line,” the following exchange occurred:
“Q. By Mr. Maple: Do you have an opinion, Dr. Kar, as to whether the
paint taken from the—
“The Court: By whom?
“Q. By Mr. Maple: —snap ring of the bubble shield—
34
“The Court: That he took, right? Not the one that Schliebe took; is that
correct?
“Mr. Maple: That is right. Because nobody can test that, your Honor. He
[Schliebe] threw it away.”
“Mr. Holliman: I’ll object to counsel editorializing.
“The Court: Disregard the statement of the attorney. Counsel, I cautioned
you. Let’s not have any of this. All I’m trying to do is to speed up the process
because we have an expert here that can give us his opinion, and the standard way
of doing it is to qualify the expert; ask him what his opinion is as to the—whatever
he’s going to compare. Then he’ll give his opinion and then simply ask him what
the basis of his opinion is, at which time he may then bring in focus all of his
qualifications for all of us. But you’re shot gunning, counsel. That—
“Mr. Maple: Well, your Honor and I differ, and I apologize to the court for
the difference.
“The Court: Counsel, I told you how much this court costs to operate.”
Counsel then elicited Kar’s opinion (that the paints differed) without further
difficulty.
While some of the court’s comments during the examination of Kar “would
have been better left unsaid” (United States v. Pisani, supra, 773 F.2d at p. 402),
we do not believe the court’s behavior “was so prejudicial that it denied
[defendant] a fair, as opposed to a perfect, trial.” (Ibid.) That the court became
impatient with counsel’s examination of the expert was perhaps understandable,
but its instructions on how to question the witness should have been given outside
the jury’s hearing. Nonetheless, we believe the effect of the court’s remarks was
not to “discredit the defense or create the impression it is allying itself with the
prosecution.” (People v. Carpenter, supra, 15 Cal.4th at p. 353.) The jury may
well have received the impression that the court disliked counsel’s methods of
35
examination, but not that the court disparaged or discredited Kar’s favorable
evidence itself.
Finally, defendant claims that the court undermined the credibility of an
expert witness the defense attempted to call to testify regarding eyewitness
identification evidence.9 However, as this expert’s proposed testimony was
excluded as irrelevant (see post, pt. X), how defendant could have been prejudiced
by any damage to her credibility is unclear.
We conclude that imperfect as the trial court’s behavior may occasionally
have been, it did not deprive defendant of a fair trial, the effective assistance of
counsel, or a reliable penalty determination.
V. Restriction on Jury Voir Dire
Defendant cites four instances in which the court assertedly restricted jury
voir dire.10 In only one of these cases, however, does the record show the court
actually cut short the defense attorney’s questioning on a topic. During the
general voir dire of Prospective Juror N., the defense questioned her in some detail
about the murder of two of her cousins, which occurred in 1958 when N. was 19
years old. N. stated that the killer had been apprehended, had been found not
guilty by reason of insanity and confined in a psychiatric hospital. The following
exchange ensued:
9
When the witness stated she had done research supported by the Michael
Milkin Foundation, the court observed that Milkin had pled guilty to “fraud and
mischief with the security exchange people.” When the witness, who had been
appointed by another judge of the court, testified she would receive $1,000 per day
to testify, Judge Tso expressed surprise and disapproval.
10
All four instances were also cited as examples of biased conduct by the
court. (See ante, pt. IV.)
36
“Mr. Maple: All right. Had he been in some sort of relationship with your
cousins?
“Prospective Juror N.: They were all mutually investing in—
“The Court: Just a moment. What is the relevance of this, counsel?
“Mr. Maple: Well—
“The Court: Let’s go on to another subject matter.”
Maple then asked the prospective juror whether knowing what happened to
her cousins would affect her ability to judge this case fairly. She replied in the
negative.
Defendant contends it was error to cut off defense counsel’s line of
questioning, which assertedly might have revealed similarities between the murder
of N.’s cousins and the present case. Perhaps, defendant suggests, N. would have
answered “by saying that the cousins were murdered to prevent them from
testifying against the murderer.” But N.’s actual answers—that the killer and
victims had been in business together and the killer was found to be insane at the
time—do not suggest any particular similarity to the present case. Given the
remoteness in time of the cousins’ killing (32 years before this trial) and the lack
of any apparent close similarity, we conclude the court’s exercise of discretion to
expedite the examination (People v. Wright, supra, 52 Cal.3d at p. 419) did not
affect defendant’s right to a fair and impartial jury (People v. Bittaker (1989) 48
Cal.3d 1046, 1086) or the reliability of the penalty verdict.
VI. Cross-examination of Gladys Koll
Defendant claims he was denied his rights of confrontation and effective
assistance of counsel, his right to a reliable death verdict, and his right to present a
defense by the court’s ruling sustaining a relevance objection to defense counsel’s
37
question of the victim’s wife, Gladys Koll, regarding the contents of the pharmacy
safe.
Gladys Koll testified that after her husband’s death she checked the
pharmacy inventory and records and found that no controlled narcotics, which
were kept in the safe, were missing, and that the safe “hadn’t been disturbed.” On
cross-examination, defense counsel asked Mrs. Koll, “What kinds of narcotic
items were kept in the safe?” The court sustained the prosecutor’s relevance
objection “because of the preliminary testimony by this witness that the safe was
not disturbed.”
Defendant argues counsel’s question “directly pertained to the accuracy and
completeness of the witness’s knowledge about the narcotics” and thus the answer
would have affected her credibility “about whether, indeed, the safe had been
‘disturbed’ in that respect.” But Mrs. Koll had testified that she compared the
contents of the safe with written inventory records, not with her own memory of
the narcotics kept therein. Moreover, the trial here took place almost eight years
after Koll was killed. Mrs. Koll’s ability or inability, at that late date, to remember
what particular drugs had been kept in the safe would not have had a tendency in
reason to prove or disprove the accuracy of her inventory check. The relevance
objection was therefore properly sustained (Evid. Code, § 210), and none of
defendant’s asserted rights under the Fifth, Sixth, Eighth, or Fourteenth
Amendments to the United States Constitution were infringed.
VII. Cross-examination of Stephan Schliebe
Defendant contends that two rulings during the cross-examination of
Stephan Schliebe, the prosecution’s paint comparison expert, deprived him of the
rights of confrontation and effective assistance of counsel, his right to a reliable
death verdict, and his right to present a defense.
38
In the first instance, defense counsel Maple was questioning Schliebe about
his analysis of paint samples from the metal pole. This exchange followed:
“Q: Okay. Now, can you tell me, sir, what the percentage of the zinc is?
“A: No. I didn’t do a quantitative analysis.
“Q: If you were to do a quantitative analysis, how would you do that, sir?
“The Court: Counsel, that’s irrelevant at this stage. He didn’t do it.”
When Maple tried to explain the question’s relevance, the court twice cut
him off, saying, “Your next question.”
According to defendant, the court’s ruling “prevented the jury from fully
evaluating the witness’s overall expertise and his familiarity with the particular
testing equipment which he used.” Schliebe, however, was extensively cross-
examined on those topics both before and after the complained-of ruling.
Defendant was not constitutionally entitled to ask the expert how a test the expert
did not do would have been done had he done it; even the expert’s confession of
ignorance as to how such a test is done would not have discredited his data and
conclusions as to the analyses he did perform. (See People v. Bell (1989) 49
Cal.3d 502, 531-532 [expert may be cross-examined on the reasons for his
opinion, and on certain relevant material that the expert failed to consider in
reaching his opinion, but not on matters irrelevant to the import or credibility of
his opinion].)
Second, defendant complains that the court interfered with counsel’s effort
to cross-examine Schliebe about his failure to account for the Bremstrahlung
effect in certain of his analyses. These parts of the cross-examination are very
difficult to understand, partly because counsel himself confused the exhibits with
one another, partly because counsel and the witness both sometimes referred to
exhibits as “this” or “that” rather than by number or by reference to the source of
the paint samples analyzed, but mainly because counsel mixed inquiries about the
39
Bremstrahlung effect with inquiries about apparent quantity differences in
individual elements, such as zinc and iron, in the samples; as a consequence, the
general subject of the examination became uncertain, and it was unclear which of
counsel’s technical questions were foundational and which called for conclusions.
The court may or may not have helped matters by interrupting, with various
requests for clarification and admonitions to avoid repetition, counsel’s apparent
attempt to ask the expert whether the Bremstrahlung effect could have masked
minor differences between blue paint taken from the bubble shield and that taken
from the metal pole. Nevertheless, when the brush had been cleared and counsel
was finally in a position to ask that question directly, he unaccountably abandoned
the effort and instead asked Schliebe to “account for the difference in the iron or
Fe&T.” Counsel did, earlier on, get Schliebe to admit generally that the
Bremstrahlung effect “may have” masked small amounts of elements in the
“various paint samples.” His failure to elicit more specific testimony regarding
comparison of the two blue paint samples was not the fault of the trial court.
VIII. Motion to Recuse the District Attorney’s Office
Before trial, defendant moved to recuse the Los Angeles County District
Attorney’s Office as prosecutor, claiming that the expected receipt of testimony
from two deputy district attorneys employed by that office, Gerald Haney and
John Krayniak, made prosecution by the district attorney’s office improper under
section 1424. Haney was the deputy who prosecuted defendant on the Koll
pharmacy robbery. Krayniak was, at the time of the killing, a Pasadena police
officer involved with the investigation, but he had since joined the district
attorney’s office as a prosecutor.11 Both ultimately did testify at trial.
11
At trial (about two years after the recusal motion was heard), Krayniak
testified he was employed as a deputy in the New Jersey Attorney General’s
(footnote continued on next page)
40
Neither Haney nor Krayniak was claimed to be participating in the murder
prosecution. Rather, defendant claimed that “the testimony of both these
witnesses . . . is so subject to colored interpretation as to vitiate the defendant’s
rights to a fair trial . . . .” In argument on the motion, defense counsel claimed that
because of the “camaraderie” in the district attorney’s office the prosecutors
“could not but have a zealous approach to this particular case beyond that
ordinarily shown in an evenhanded manner in an ordinary case.” The court denied
the motion, finding the defense had not shown “that a conflict of interest in our
present case would render it unlikely that the defendant would receive a fair trial.”
We recently reiterated the applicable principles in Hambarian v. Superior
Court (2002) 27 Cal.4th 826 (Hambarian). “The standard for a motion to
disqualify the prosecutor is set forth in Penal Code section 1424: ‘The motion
may not be granted unless the evidence shows that a conflict of interest exists that
would render it unlikely that the defendant would receive a fair trial.’ We detailed
the history of this statute and the associated legal principles in [People v. Eubanks
(1996) 14 Cal.4th 580], where we explained that a ‘conflict,’ for purposes of
section 1424, ‘ “exists whenever the circumstances of a case evidence a reasonable
possibility that the DA’s office may not exercise its discretionary function in an
evenhanded manner.” ’ (Eubanks, supra, 14 Cal.4th at p. 592, quoting People v.
Conner (1983) 34 Cal.3d 141, 148.) However, ‘the conflict is disabling only if it
is “so grave as to render it unlikely that defendant will receive fair treatment” ’
during all portions of the criminal proceedings. (Eubanks, supra, at p. 594.) The
(footnote continued from previous page)
Office. As the recusal motion was argued and decided on the premise that
Krayniak was employed by the Los Angeles County District Attorney’s Office, we
will accept that premise for purposes of our discussion as well.
41
statute thus articulates a two-part test: ‘(i) is there a conflict of interest?; and (ii) is
the conflict so severe as to disqualify the district attorney from acting?’ (Ibid.)”
(Hambarian, supra, at p. 833, fn. omitted.)
Defendant argues the trial court applied the wrong standard: according to
him, the court was called upon only “to determine whether there was a ‘reasonable
possibility’ that the D.A.’s office might not exercise its discretionary function in
an evenhanded manner.” Defendant is clearly wrong: such a determination would
satisfy only the first part of the two-part test outlined in Eubanks and Hambarian.
The trial court correctly refused to recuse the district attorney’s office without a
showing that prosecution by that office would render fair treatment unlikely.
(Hambarian, supra, 27 Cal.4th at p. 833.)12
As defendant does not contend the trial court’s ruling was an abuse of
discretion (see Eubanks, supra, 14 Cal.4th at pp. 594-595) under what we have
explained is the correct legal standard, we need not decide that question. We note,
however, that recusal of an entire district attorney’s office, especially a large one
such as Los Angeles County’s, has generally not been held required merely
because one or more employees of that office are witnesses in the case. (See
People v. Hernandez (1991) 235 Cal.App.3d 674, 678; Trujillo v. Superior Court
(1983) 148 Cal.App.3d 368, 370, 373; People ex rel. Younger v. Superior Court
(1978) 86 Cal.App.3d 180, 191-192, 205-212.)
12
Defendant also asserts that denial of the recusal motion deprived him of a
fair trial (U.S. Const., 14th Amend.) and a reliable penalty determination (id., 8th
Amend.), as well as constituting error under section 1424. As defendant nowhere
articulates how, if at all, the relevant constitutional principles differ from the
statutory standard, we discuss only the legal standard set out in section 1424. (See
Hambarian, supra, 27 Cal.4th at p. 833, fn. 4; Eubanks, supra, 14 Cal.4th at
p. 596, fn. 8.)
42
IX. Admission of Assertedly Privileged Communication
Defendant claims error in the admission, over defense objection, of
evidence that defendant had asked to delay his response to the robbery plea
bargain offer until after the lunch hour. Because the communication to his
attorney of this request was privileged, he contends, its admission denied him due
process and a fair trial.
Gerald Hanley, the deputy district attorney who prosecuted defendant for
the robbery of Koll’s pharmacy, testified that on the morning of November 3,
1980, he and Adolfo Lara, defendant’s attorney, were in plea negotiations in the
trial judge’s chambers. Hanley made an offer, which Lara left to discuss with
defendant. Over defense objection, Hanley testified that when Lara returned he
told Hanley, “ ‘My guy wants to think about it over—during the lunch hour.’ ”
Defendant’s statement to Lara was not a confidential communication,
within the meaning of Evidence Code section 952, because, by its nature, it was
meant to be communicated by the attorney to the prosecutor. Thus, it was not
privileged. (Solon v. Lichtenstein (1952) 39 Cal.2d 75, 79-80; 2 Witkin, Cal.
Evidence (4th ed. 2000) Witnesses, § 119, p. 375.) Defendant’s constitutional
contention, which depends on his claim of privilege, fails as well.
X. Failure to Admit Expert Testimony or Provide Instructions on
Eyewitness Identification
The trial court excluded, as irrelevant, the defense’s proffered expert
testimony on the factors affecting the reliability of eyewitness identifications. The
court also gave no jury instructions on this subject. Defendant contends that
exclusion of the evidence and the court’s failure, sua sponte, to instruct on this
topic were error.
No eyewitness identified defendant as the person who shot and killed Koll.
Testifying at the preliminary hearing in the prior robbery case, however, Koll had
43
identified defendant as one of the robbers. The expectation that Koll would again
so testify at the robbery trial provided, according to the prosecution theory of this
murder case, the motive for defendant to kill Koll. Defendant’s knowledge of that
likelihood, and his understanding of the strength or weakness of that expected
identification, were clearly relevant to motive; indeed, defense evidence going to
these points was admitted. (See ante, at pp. 9, 12.) But a psychologist’s testimony
regarding the factors generally affecting the reliability of eyewitness
identifications did not, in itself, have any tendency to show defendant’s motive to
kill or lack thereof. Nor was the reliability of eyewitness testimony a matter
“closely and openly connected to the facts before the court and . . . necessary for
the jury’s understanding of the case” (People v. Montoya (1994) 7 Cal.4th 1027,
1047), such that instruction on the topic was required of the court sua sponte.
The proffered evidence being irrelevant, and the suggested instructions
unconnected with the evidence, defendant’s assertion that the claimed errors
deprived him of due process, compulsory process, trial by jury, the right to present
a defense, and subjected him to cruel and unusual punishment must also be
rejected.
XI. Refusal of Request to Make a Record Regarding a Ruling on the
Order of Witnesses
During and immediately following the direct examination of defendant,
defense counsel sought to interrupt defendant’s testimony in order to call Ramesh
Kar, the defense paint comparison expert. The court refused the request, stating
that “[t]he People have a right to timely cross-examine this witness.” The court
also denied counsel’s request to make a further record.
Defendant contends the refusal of counsel’s request to make a record was
an abuse of the court’s discretion depriving him of due process and a fair trial. We
disagree. When counsel made the request, he had the opportunity to briefly state
44
his reasons for wanting to immediately call Kar, but said only that Kar “is an
individual who is internationally known.” The court firmly believed that delay of
defendant’s cross-examination would be unfair to the prosecution, Kar’s asserted
fame notwithstanding, a judgment well within the court’s discretionary control
over trial proceedings and the order of proof. (§ 1044; Evid. Code, § 354.) It was
neither an abuse of discretion, nor a denial of fair procedure, for the court to close
discussion on this procedural point.
XII. Exclusion of Evidence that Koll Misidentified His Robbers
The defense attempted to present, through the testimony of Pasadena Police
Officer Eugene Gray, evidence that during the investigation of the robbery Koll
had identified (from photographic arrays) three different individuals as the
robbers, even though there were only two robbers. The trial court sustained a
prosecution objection to such evidence, finding it irrelevant and further finding
that the consumption of time and the risk of confusion necessitated by receipt of
the evidence outweighed any probative value it held. (Evid. Code, § 352.)
We agree the evidence was excludable under Evidence Code section 352.
Evidence that Koll had made an erroneous identification of one of the robbers
from a photographic array would have been only slightly probative on the issues in
defendant’s murder trial. While defendant’s knowledge of weaknesses in the
robbery prosecutor’s case was relevant as tending to show lack of motive, the
murder jury did receive such evidence in the form of testimony from Attorney
Lara and defendant. At most, Gray’s proposed testimony would have tended to
corroborate that evidence.13 Even the knowledge of a weakness in Koll’s robbery
13
Defendant’s offer of proof did not indicate that the weakness in Koll’s
pretrial identifications related specifically to his identification of defendant, rather
than his codefendant in the robbery case, Phillips.
45
identification did not, however, tend strongly to disprove motive, since defendant
had a motive to kill Koll, who had identified him at the preliminary hearing,
regardless of whether that identification could have been challenged at trial.
Possible corroboration of the existence of that flaw in the identification, then, bore
only an attenuated and weak tendency to disprove motive.
At the same time, exploration of the details of Koll’s pretrial robbery
identifications threatened a significant consumption of time and potential for
confusion. Indeed, the prosecutor and defense counsel differed, in discussion
before the trial court, as to whether the evidence even showed that Koll had made
any misidentification of defendant in the robbery case.14 The trial court could
reasonably anticipate that substantial time would be needed to obtain all evidence
on this question. Admission of the evidence, moreover, would have tended to
confuse the jury as to the questions for its decision. The more examination time
spent on this issue, the greater the risk that the jury would lose sight of the fact that
Koll’s identification of defendant as a robber was not directly at issue in the
murder case, and would decide the murder case on a legally incorrect ground.
14
The parties continue to differ on this point. The Attorney General has
requested this court take judicial notice of the unpublished appellate opinion
affirming defendant’s robbery conviction, which the Attorney General interprets
as showing that any misidentification was of Phillips, rather than defendant.
Defendant objects to our taking notice of the opinion for this purpose and also
asserts that the opinion shows Phillips was not misidentified, but used an alias, and
that defendant’s identification was only “tentative.” Unpublished Court of Appeal
decisions are citable without the formality of judicial notice for certain purposes,
not including the use proposed here. (Cal. Rules of Court, rule 977(a).) We
decline to take notice of the decision for purposes outside that rule, which further
provides that such decisions may not be relied on by a court for other purposes.
(Ibid.) The motion for judicial notice is therefore denied.
46
The trial court did not abuse its discretion (People v. Frye, supra, 18
Cal.4th at p. 945) in finding that the consumption of time and the risk of jury
distraction were not justified by the marginal probative value of the proffered
evidence. Nor, contrary to defendant’s assertion, was the evidence of such
probative strength that its exclusion violated his constitutional right to present a
defense. Application of the ordinary rules of evidence, such as Evidence Code
section 352, generally do not deprive the defendant of the opportunity to present a
defense (Frye, supra, at p. 945); certainly the marginal probative value of this
evidence does not take it outside the general rule.
XIII. Exclusion of Evidence of Police Dispatch Tape
Defendant sought to introduce a copy of parts of the Pasadena police
dispatch tape for the late afternoon and evening of November 3, 1980. On the
tape, according to a transcript in the record, the police dispatcher is heard to
discuss, briefly and sporadically with various police officers and records
personnel, an investigation she had apparently been asked to make into recent
motor vehicle collisions in Pasadena.15 In one discussion the dispatcher suggests
to a Lieutenant Roberts that with Prentice Snow in custody she thought “maybe
we didn’t need the visor.” Roberts corrects her: “We need everything we can get
on this one.” Earlier on the tape the dispatcher mentions to another officer that at
Roberts’s request she has been “looking for something in revab” in connection
with a suspect in custody “from Walnut.” At another point she inquires of a
15
From the testimony of the dispatcher and a defense investigator, the date
and time of the recording was established as November 3, 1980, after the
dispatcher started her shift at 3:30 p.m. The dispatcher, for whom the tape had
been played outside of court, was able to identify several of the voices heard, but
had no memory of the events referred to on the tape.
47
department administrator whether an accident at Lincoln and Walnut two days
earlier involved a motorcycle. Told it did, she asks whether the motorcyclist was
wearing a helmet. Told he was not, she thanks the administrator and ends the
conversation.
The prosecution police witnesses had testified that the bubble shield that
bore defendant’s fingerprint was found in a Pasadena street around 12:40 p.m.,
shortly after Koll’s death. Interpreting the dispatch tape excerpts as showing that
the police were still in search of a visor, or face shield, much later in the day, the
defense argued at the hearing on admissibility of the tape that the dispatch tape
impeaches the prosecution witnesses and tends to show the existence of a police
conspiracy to manufacture evidence against defendant.
The prosecutor objected to the tape as irrelevant hearsay. After listening to
the tape, the court stated that it had heard no reference to a bubble shield or visor.
Interpreting the dispatcher’s remarks about defendant’s case as “simply her
impressions,” the court excluded the tape as irrelevant.
We agree with the trial court that the tape was irrelevant. Nothing said on
the tape indicates the existence of a conspiracy to frame defendant. The dispatcher
apparently knew little or nothing about the Koll murder investigation—until told
by officers in the taped conversations, for example, she did not know who the
suspected killer was or that he was in custody. Her remarks on tape are, as the
trial court said, merely “her impressions” and not evidence of a police plan.
Moreover, neither she nor any of the officers to whom she speaks discuss any plan
to manufacture evidence against defendant.
The defense theory of relevance is apparently that discussion of a visor and
a motorcycle accident in the late afternoon or evening of November 3 contradicts
police testimony that the bubble shield introduced at trial was recovered in the
early afternoon, and hence tends to show that testimony to be false and that the
48
police intended to find an unrelated bubble shield and somehow link it to
defendant. Even setting aside some obvious questions regarding the plausibility of
the defense theory,16 the tape is equally or more consistent with an innocent
explanation than with the alleged conspiracy. Because the bubble shield had been
found in a street some distance from the crime scene, it was possible that it had
been deposited there as the result of a prior motorcycle accident and had nothing
to do with Koll’s killer. The investigating officers would logically want to
exclude that possibility by determining that there had been no such accident in the
vicinity in the recent past. If any inference may be made from the tape, that
appears the most reasonable.
More to the point, the defense offered, and offers, no coherent factual
theory for conspiratorial use of a later-recovered visor. Defendant himself
testified, at both his trials, that the bubble shield introduced at trial bore his
fingerprint because he pushed at it when it was thrust at him during the afternoon
court session on November 3. The defense further presented testimony of an
attorney trying another case on that day that a helmet with a bubble shield was
brought into his courtroom during the afternoon session. But if, as defendant
asserts, the tape shows that into the evening of November 3 the police were still
looking for a bubble shield with which to frame him, how could they have already
obtained his fingerprint on one at midafternoon?
Whether taken on its own, therefore, or viewed in the context of all the trial
evidence, the tape had no tendency in reason (Evid. Code, § 210) to show a police
conspiracy to manufacture evidence against defendant. For the same reason, the
16
Why, for example, would the hypothetical police conspirators exhaustively
research past motor vehicle accidents in search of a visor when they could simply
get one off a motorcycle helmet or from a store?
49
tape’s exclusion did not deprive defendant of his constitutional rights, and any
error in excluding it would be considered harmless under any standard.
XIV. Denial of Continuance to Investigate New Trial Motion
Defendant repeats his earlier contention that the trial court improperly
denied the defense a continuance to further investigate the police conspiracy
theory for presentation in a new trial motion. We have already rejected that
contention. (See ante, pt. III.D.) The defense was given more than two months
after the penalty verdict to further investigate its theory. There was no indication
that a further continuance of reasonable length would have allowed defense
counsel to obtain the information they asserted they were still seeking. Denial of
the continuance therefore was not an abuse of discretion and did not deprive
defendant of his constitutional rights to confront witnesses, to effective assistance
of counsel, or to a reliable penalty determination.
XV. Denial of Motion to Strike Portion of Defendant’s Cross-
examination
On cross-examination of defendant, the prosecutor asked whether “People’s
6, the bubble shield” had been stolen from defendant’s apartment building along
with his blue helmet. Defendant answered that it had. On redirect, defendant said
he had not heard the prosecutor ask him about exhibit 6, the bubble shield
introduced at trial; rather, his answer related to the bubble shield he had purchased
to use with his helmet.
Later, defense counsel moved to strike the portion of defendant’s
cross-examination in which he had answered that exhibit 6 had been stolen from
him. Counsel represented that the prosecutor had said that eliciting that answer
had been “inadvertent.” Asked to confirm this, the prosecutor stated that he had
said that “from the context, it was clear that we were talking about the bubble
shield that he said that he had purchased.” The court denied the motion to strike.
50
Defendant argues the cross-examination should have been stricken, and the
jury told not to consider it, because the prosecutor’s questioning regarding exhibit
6 was inadvertent. Inadvertently or not, however, the question did elicit the
admission from defendant that he had previously had possession of exhibit 6, on
which his fingerprint was found and which was found on a Pasadena street shortly
after Koll’s death. Although the prosecutor was apparently unaware he was
asking this, and thought he was simply reviewing defendant’s direct testimony
with regard to a bubble shield he had owned, defendant’s answer was responsive
to the question asked. Defendant cites no provision of the Evidence Code limiting
testimony to that the questioner intended to elicit.17
XVI. Restriction on Second Counsel in Argument
Before the defense began its guilt phase argument, the trial court indicated
it would allow only one attorney (Miller, the lead defense attorney) to argue,
despite counsel’s suggestion that Maple could better argue “the technical aspect of
the experts.” At this point, at least, the court was apparently unaware of section
1095, which permits two counsel to argue in a capital case. During a break in
Miller’s argument, however, the court reversed itself in part, offering to allow
Maple to argue “the bubble shield and paint expert testimony.” Defense counsel
17
Although he makes no distinct argument on this basis, the heading of this
contention in defendant’s opening brief refers to the cross-examination as “based
upon facts not in evidence.” Counsel objected to the cross-examination on that
basis, but the motion to strike was instead made on the ground that the
prosecutor’s question had been “inadvertent.” Nor do we believe the objection
was well taken. The prosecutor asked whether exhibit 6, together with a blue
helmet, had been stolen from the back of defendant’s building. Defendant
answered affirmatively. It is true defendant had not previously testified that the
bubble shield he had owned was exhibit 6, but a question that calls for new
information does not for that reason assume facts not in evidence.
51
accepted the offer: Maple said he would argue “only the particular technical
aspects.”
Court and counsel, however, apparently understood the proposed division
of argument differently; the court thought Maple would argue only the paint
comparison evidence, while Maple and Miller believed Maple was to argue all the
expert testimony. Thus, when Maple, after a long discussion of the paint
evidence, began talking about the fingerprint on the bubble shield, the court
interrupted to urge him to stay on the subject of paint because “Mr. Miller, as you
know, is going to cover all the other aspects, or so I’ve been told.” Maple, on the
other hand, observed that “there is a technical aspect of this bubble shield and the
fingerprint examination” that he wished to address. The court gave Maple an
opportunity to “tie . . . up” the two subjects, and Maple argued that the absence of
fingerprint powder on the bubble shield’s exterior (convex) surface cast doubt on
the fingerprint evidence. But when Maple then began to address the testimony of
the prosecution handwriting expert, the court precluded him from continuing to do
so, suggesting that Miller “pick this up” instead.
Defendant contends the trial court violated section 1095 and so restricted
the defense argument as to deprive defendant of the effective assistance of
counsel. The Attorney General maintains that the court’s order for division of
argument was within its discretionary control over trial proceedings under section
1044 and that counsel gave a competent argument.
We need not decide whether the trial court’s restriction on the division of
argument violated section 1095 or was within the court’s discretion under section
1044. Any error did not preclude counsel from arguing the case effectively.
Maple was permitted to argue the technical aspect of the fingerprint evidence, as
he wished to do, and made such an argument before trying to also discuss the
handwriting evidence. Maple’s only question regarding the handwriting expert
52
drew an objection, which was sustained on grounds not challenged on appeal. The
record does not reflect what, if any, additional topics regarding the handwriting
evidence Maple would have discussed had he been permitted to continue on that
subject; nor does it provide any reason to imagine that Miller was incapable of
discussing those topics, if there were any. To the extent Miller needed preparation
time in order to address the handwriting (or fingerprint) evidence, the record
reflects that, not long after he resumed arguing, the court recessed for the day, and
reconvened the next day, providing an opportunity for such additional preparation.
Thus, the record reflects no prejudice, and in particular no infringement of the
right to effective assistance, resulting from the court’s ruling. (People v.
Rodrigues (1994) 8 Cal.4th 1060, 1184-1186; People v. Bonin (1988) 46 Cal.3d
659, 694-695, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800,
823, fn. 1.)
Nor do we decide whether counsel’s guilt phase argument was, taken as a
whole, constitutionally inadequate, a point disputed by the parties on appeal.
Though Miller did not address the handwriting evidence in his resumed argument,
that may well have been a tactical decision. Even if the prosecution expert’s
testimony were successfully attacked, the spiral-bound notebook remained linked
to defendant because it was found in his automobile. The defense, as the Attorney
General points out, may have decided that as to this topic “the less said, the
better.” In these circumstances, where the appellate record does not reveal
whether counsel had a legitimate reason for a litigation choice, we generally
reserve consideration of any ineffective assistance claim for possible proceedings
on petition for writ of habeas corpus. (People v. Lewis (2001) 25 Cal.4th 610,
674-675; People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
53
XVII. Standard Instructions on Circumstantial Evidence
Defendant attacks four standard instructions given in his case, CALJIC
Nos. 2.01, 2.02, 8.83, and 8.83.1, each of which contains language advising the
jury that if faced with two possible interpretations of the evidence, one reasonable
and one unreasonable, “you must accept the reasonable interpretation and reject
the unreasonable.” According to defendant each of these was constitutionally
flawed because each “sanctioned a permissive inference or factual finding against
[defendant] even if it was less than more likely than not to be true.”18
We rejected this precise contention in People v. Bradford (1997) 14 Cal.4th
1005, 1054, and rejected closely related claims in People v. Riel (2000) 22 Cal.4th
1153, 1200, People v. Crittenden (1994) 9 Cal.4th 83, 144, and other decisions.
Defendant’s citation of federal decisions involving the constitutionality of
permissive presumptions in criminal cases (Ulster County Court v. Allen (1979)
442 U.S. 140, 166, fn. 28; Schwendeman v. Wallenstein (9th Cir. 1992) 971 F.2d
313, 316) adds no merit to his contention. The challenged CALJIC instructions do
not create a presumption, permissive or mandatory, as they do not permit or
require any particular ultimate fact to be inferred from any particular predicate
fact; they simply direct the jury, in general, to choose a reasonable conclusion over
an unreasonable one in evaluating circumstantial evidence. (People v. Mendoza
(2000) 24 Cal.4th 130, 181.) Moreover, even if we viewed the instructions as
creating permissive presumptions, we would find they met the “more likely than
18
Defendant also lists CALJIC No. 2.00, which does not contain the criticized
language, as under attack, but makes no argument for its unconstitutionality
separate from the other four instructions. In a later discussion, defendant also
criticizes the use of “appears” in CALJIC No. 2.01, which he argues further dilutes
the reasonable doubt standard; we disagree for the reasons stated in People v.
Hines (1997) 15 Cal.4th 997, 1050-1051.
54
not” standard of Ulster County Court v. Allen, supra, 442 U.S. at page 166,
footnote 28. When only one inference may reasonably be made from
circumstantial evidence, that inference is indeed more likely than not to be true.
The instructions did not deprive defendant of due process or a fair and
reliable penalty determination.
XVIII. Instruction on False Statement Showing Consciousness of Guilt
The jurors were instructed, by CALJIC No. 2.03, that if they found
defendant made “a willfully false or deliberately misleading statement”
concerning the crime,” they could consider such statement as a circumstance
tending to prove a consciousness of guilt, though not as evidence sufficient in
itself to prove guilt. Defendant contends that the instruction lacked a proper
evidentiary basis in this case, and that its giving therefore deprived him of his
constitutional rights to trial by jury and due process.
In response, the Attorney General points to two statements the jury could
reasonably have found deliberately false or misleading: defendant’s statement to
his attorney in the robbery case that he wanted the lunch hour on November 3,
1980, to consider the prosecutor’s plea bargain offer; and defendant’s statement,
later that day, that he needed to urinate before he could be tested for gunshot
residue. We agree these statements constituted sufficient evidence to support the
instruction.
In reply, defendant first argues the instruction should not have been given
because these statements “were not inconsistent with any statement appellant
made at trial.” However, the instruction applies whether or not the defendant
himself contradicts his earlier statement. (People v. Green (1980) 27 Cal.3d 1, 40,
overruled on other grounds in People v. Hall (1986) 41 Cal.3d 826, 834, fn. 3.) As
defendant acknowledges, we have approved the instruction in several cases where
55
the pretrial statement was shown to be false only by the testimony of prosecution
witnesses. (See, e.g., People v. Arias (1996) 13 Cal.4th 92, 141; People v.
Rodrigues, supra, 8 Cal.4th at pp. 1138-1140; People v. Green, supra, at p. 40.)
Second, defendant argues that CALJIC No. 2.03 “should not be given in a
case where the defendant’s testimony is consistent with his pretrial statements
even though it is inconsistent with the prosecution’s case.” We need not decide
whether that is a correct statement of the law (see People v. Green, supra, 27
Cal.3d at pp. 40-41 [mentioning but not deciding the issue]) because the issue is
not presented here. Although defendant testified, he did not testify that he wanted
the lunch hour to consider the plea bargain offer or that he needed to urinate
before being tested for gunshot residue. Indeed, he testified he did not make the
latter statement.
Because the instruction had a proper evidentiary basis, defendant’s
constitutional claims are without merit.
XIX. References to “Innocence” in Instructions
Defendant contends that references to “innocence” in four standard jury
instructions unconstitutionally altered the burden of proof by suggesting to the
jury that he bore the burden of proving his innocence, rather than the prosecution
having to prove guilt beyond a reasonable doubt.19 This court and the Court of
19
CALJIC No. 1.00, as given, cautioned that the fact that defendant had been
arrested, charged and brought to trial was not evidence of guilt and did not make
him “more likely to be guilty than innocent.” CALJIC No. 2.01, as given, told the
jury that of two reasonable interpretations of circumstantial evidence, one pointing
to guilt and the other to “innocence,” the jury must adopt the latter. CALJIC No.
2.51, as given, instructed that while motive is not an element of the charged crime,
its presence may tend to show guilt and its absence may tend to show “innocence.”
CALJIC No. 17.47, on secrecy of balloting, cautioned the jurors not to reveal how
they were divided as to “guilt or innocence.”
56
Appeal have rejected this claim in prior decisions (People v. Frye, supra, 18
Cal.4th at p. 958; People v. Wade (1995) 39 Cal.App.4th 1487, 1491-1494, 1497),
and we do so again here. In light of the numerous instructions directing the jury to
convict only on proof beyond a reasonable doubt of guilt,20 no reasonable
likelihood the jury would have understood the challenged instructions otherwise
exists. (People v. Frye, supra, at p. 958.) Taking all the instructions together, as
required, the jurors would instead have understood that while the issue before
them is defendant’s guilt or innocence, a conviction may be returned only if the
prosecution has proved defendant’s guilt beyond a reasonable doubt. Because
there was no reasonable likelihood of misunderstanding, the challenged
instructions did not deprive defendant of a fair trial or a reliable penalty
determination.
XX. Instruction on Motive
Defendant complains that CALJIC No. 2.51, which, as given, stated that
motive “is not an element of the crime charged and need not be shown,” but that
its presence “may tend to establish guilt,” did not further caution the jury that
proof of motive alone was insufficient to establish guilt.
If the challenged instruction somehow suggested that motive alone was
sufficient to establish guilt, defendant’s point might have merit. But in fact the
instruction tells the jury that motive is not an element of the crime charged
20
E.g., CALJIC Nos. 2.90 (People’s burden of proof beyond a reasonable
doubt), 2.01 (each fact upon which inference of guilt rests must be proven beyond
a reasonable doubt), 4.50 (jury to acquit if alibi evidence creates reasonable
doubt), 8.71 (murder and degree of murder both to be proven beyond a reasonable
doubt), 8.80 (special circumstance to be proven beyond a reasonable doubt), 8.83
(each fact upon which inference of special circumstance’s truth rests must be
proved beyond a reasonable doubt).
57
(murder) and need not be shown, which leaves little conceptual room for the idea
that motive could establish all the elements of murder. When CALJIC No. 2.51 is
taken together with the instruction on the concurrence of act and specific intent
(CALJIC No. 3.31) and the instruction outlining the elements of murder and
requiring each of them to be proved in order to prove the crime (CALJIC No.
8.10), there is no reasonable likelihood (People v. Frye, supra, 18 Cal.4th at
p. 958) it would be read as suggesting that proof of motive alone may establish
guilt of murder.
XXI. Instructions on Motive and the Special Circumstance Allegation
Defendant contends that CALJIC No. 2.51, discussed above, and CALJIC
No. 8.81.10, which, as given, told the jury that one element of the charged
witness-killing special circumstance was that “the witness was intentionally killed
for the purpose of preventing his testimony in a criminal proceeding” were
inconsistent. Because motive and purpose are closely related concepts, defendant
argues, the jury may have been misled into believing that the special circumstance
allegation need not be proven.
We disagree. The instructions were not inconsistent, as CALJIC No. 2.51
referred to “the crime charged,” i.e., murder, and not to the special circumstance
allegation. Even allowing for misunderstanding on that particular point, it was not
reasonably likely (People v. Frye, supra, 18 Cal.4th at p. 958) that the jurors
would have been misled in the manner defendant suggests, as they were repeatedly
and expressly instructed to find the special circumstance allegation true only if
each element, including the purpose of preventing the victim’s testimony, was
58
proved beyond a reasonable doubt.21 The instructions, taken as a whole, did not
deprive defendant of a fair trial or a reliable penalty determination.
XXII. Instruction Defining Reasonable Doubt
Defendant contends that CALJIC No. 2.90, as given, unconstitutionally
lessened the standard of proof beyond a reasonable doubt because it used the
phrases “moral certainty,” “moral evidence,” and “abiding conviction.” We have
repeatedly rejected this contention (see, e.g., People v. Seaton (2001) 26 Cal.4th
598, 668; People v. Hines, supra, 15 Cal.4th at p. 1051; People v. Ray (1996) 13
Cal.4th 313, 347; People v. Freeman (1994) 8 Cal.4th 450, 501-505) and have
been given no reason to reconsider those decisions here.
Penalty Phase Issues
XXIII. Failure to Substitute New Counsel for the Purpose of Penalty
Phase Argument
Defendant contends the judgment of death must be reversed because the
court accepted defense counsel’s waiver of penalty phase argument to the jury on
his behalf. Specifically, defendant argues that the court was duty-bound to appoint
new counsel for that single purpose once defendant responded affirmatively to the
court’s inquiry whether he would accept the proposed substitution of counsel.22
For reasons next explained, this claim of trial court error must be rejected on
21
See CALJIC Nos. 8.80 (special circumstance must be proven beyond a
reasonable doubt), 8.81.10 (elements of special circumstance; each must be
proved), 8.83 (each fact upon which inference of special circumstance’s truth rests
must be proved beyond a reasonable doubt), 8.83.1 (circumstances showing
mental state for special circumstance must be proved rationally irreconcilable with
absence of mental state).
22
The claim is contained in a supplemental brief which defendant was
permitted to file subsequent to the filing of his opening brief.
59
appeal. Moreover, resolution of the closely related question whether counsel’s
failure to present any penalty phase arguments constituted ineffective assistance of
counsel must await formal presentation of the claim in a petition for writ of habeas
corpus predicated on an adequately developed factual record.
A. Background
After conclusion of the People’s case in aggravation of penalty, the defense
rested without introducing any evidence. Questioned outside of the jury’s
presence, counsel indicated that although their investigation had produced some
evidence regarding defendant’s character, background, and mental and physical
condition, they did not wish to present any of it. Defendant personally affirmed
that counsel had consulted with him and had informed him of the right to put on
mitigating evidence, and that he wished to forgo the exercise of that right.
The court told counsel for both parties that each side would have one
opportunity for argument, the prosecution first and the defense last, but that both
attorneys for each party could argue if they wished. Prosecutors Holliman and
Lutes then argued for the People, emphasizing the aggravating circumstances of
the crime. The next morning (July 18, 1990), after a discussion about an
instruction to be given on lingering doubt as a factor in mitigation, the court called
on the defense for argument. Counsel Maple responded, “If your Honor pleases,
on behalf of Mr. Miller and myself, we will submit the case to the jury without
argument.”
Outside the presence of the jury, the court expressed its “astonish[ment]”
that after receiving a continuance, and court funding, to perform investigation for
the penalty phase of trial, the defense offered no witnesses and “not one word to
the jury.” The court then asked counsel why they were not presenting “a
60
sympathy or any other moralistic reason or any other reason on behalf of Mr.
Snow.” After counsel conferred privately, the following colloquy occurred:
“The Court: Does counsel for the defense wish to respond to the court’s
inquiry?
“Mr. Maple: I do not, your Honor.
“The Court: Mr. Miller?
“Mr. Miller: No, sir.
“The Court: Let the record reflect that this court has expended a great
amount of funds as to this penalty trial for the defense attorneys’ investigation as
to factors in mitigation. I have continued this trial almost six weeks [for penalty
phase investigation]. I don’t know what the billings are for all these investigators
in other states, but not one witness was called on behalf of Mr. Snow at the penalty
trial. This astonishes the court. . . . Not one word is being argued in his behalf as
to the penalty aspect of this trial before this jury. May I know why, counsel? Mr.
Miller, have you any reply?
“Mr. Miller: No, sir. No, your Honor.
“The Court: Mr. Maple?
“Mr. Maple: No, your Honor.
“The Court: I am going to recess this matter until 1:30. I wish to get a
representative from the State Bar here.”
The jury was then released for lunch and told to return at 1:45 p.m. Outside
the presence of the prosecutors, the court continued its inquiries of defense
counsel:23
23
The transcript of this hearing held outside the presence of the district
attorney was originally filed under seal. Both defendant and the Attorney General
have been provided copies of the transcript, both sides have briefed its contents,
(footnote continued on next page)
61
“The Court: Record should reflect that in the penalty trial the defense has
presented no evidence in mitigation in behalf of Mr. Snow, and today I’ve learned
that there will be no offer of arguments in behalf of Mr. Snow. Mr. Miller, is this
pursuant to the wishes of the defendant?
“Mr. Miller: Your Honor, I’m in no position to answer the court’s
question.
“The Court: Thank you. Is this pursuant to tactical reasons that you have
developed in the course of this trial?
“Mr. Miller: I cannot answer the court’s question.
“The Court: And why, may I ask, are you not presenting arguments or any
evidence in mitigation in light of the expenditure of this court in behalf of your
defense?
“Mr. Miller: Your Honor, I cannot answer the court’s question.
“The Court: Mr. Snow, I inquired of you yesterday whether or not you
were aware that you have a right to present evidence in this case . . . . I believe I
gave you a rundown as to what factors in mitigation you may present. It may
pertain to the case itself, it may pertain to your background, physical or mental
condition, as well as any character evidence that you may have. There was none.
Are you aware that you can have this evidence presented, Mr. Snow?
“The Defendant: Yeah.
“The Court: Thank you. And today to the court’s astonishment, and I’ve
never had this happen, and I know of no court in which there has been no
arguments whatsoever as to the attorneys.
(footnote continued from previous page)
and neither objects to unsealing it. Accordingly, the transcript in question is
hereby ordered unsealed.
62
“You realize that I cannot force your attorneys to argue. They have a right
to waive that argument. However, I want you to be aware, if you want someone to
argue in your behalf, I will gladly appoint another lawyer and to have him review
this case for purposes of arguments.
“Mr. Snow, are you aware that you—that the arguments before this jury in
your behalf can cover great areas such as sympathy, moral factors, as well as any
background evidence that you may have? Among the background evidence that
could be presented to the jury is that you have been in custody since 1980, to my
knowledge, and for the last 10 years perhaps there ha[s] been no evidence of you
being not a model prisoner. That could be a factor in mitigation.
“There are so many aspects to factors in mitigation as to your case. You
understand this Mr. Snow?
“The Defendant: Yes.
“The Court: Do you wish the court to appoint another lawyer in your
behalf?
“The Defendant: Yes.
“The Court: Thank you. This will be for the purposes of the arguments in
this case. Do you understand this?
“The Defendant: (Defendant nods head in the affirmative.)
“The Court: Was Mort Borenstein here?
“The Clerk: He was here this morning.
“The Court: Can we get him here at 1:30[?]
“The Clerk: I will call his office.
“The Court: I am going to try to find Mr. Mort Borenstein who tried a
capital case by the name of People versus Beltran in this case [sic: court] and was
able to obtain a verdict of not guilty. I know him to be a very resourceful as well
63
as a most competent attorney. I want him. I am going to try to get a hold of him;
have him here at 1:30 this afternoon.”
After a recess, the court reconvened at 1:40 p.m., again outside the presence
of the jury and district attorney. The court continued its examination of defense
counsel regarding their obligation to present mitigating evidence if any was
available. Attorneys Maple and Miller responded that they needed the advice of
counsel and had obtained such representation in attorney Robert Gerstein, who
was present outside the courtroom. Maple further asserted that Gerstein had been
previously appointed counsel for defendant, having been appointed “for all
purposes” by Judge Xanthos, presiding judge of the same court, who in his
capacity as master calendar judge, was handling counsel and expert witness
appointments and investigator funding. The trial court (Judge Tso), taking
apparent umbrage at the assertion that, without his knowledge, an attorney had
been appointed in this case “for all purposes,” invited Judge Xanthos into the
courtroom to confirm or disprove the claim. Before he arrived, the following
colloquy occurred:
“Mr. Maple: Thank you.
“I wish to amplify the record so that it is complete and not incomplete, your
Honor. If I may be heard in this regard.
“Mr. Gerstein’s status in the case occurred as a result of Mr. Miller and
myself deciding to take a writ. We employed him. Utilizing trust funds that were
provided by Judge Xanthos, among other things. Your Honor has no knowledge
of the reasons for it. Except to the extent that you were furnished a copy of the
petitions for the writs. Over the signature of Mr. Gerstein as counsel for Mr.
Snow.
“Now, in this present situation unbenounst [sic] to your Honor there are
factors that I cannot disclose to you. And because if [sic: of] your statements
64
about involving the State Bar, Mr. Miller and I asked Mr. Gerstein to come here to
represent Mr. Snow for the purpose of explaining that to the court. And I think we
have a right to do that.
“The Court: What will he explain to the court?
“Mr. Maple: I am not going to say anything further in that regard because
that is his job. Not mine.
“The Court: All right. Thank you.”
Judge Xanthos then arrived and stated he had no recollection of having ever
appointed Gerstein for any purpose. Finally, the court agreed to hear Gerstein, and
the following discussion ensued:
“The Court: What’s your purpose for being present today, please?
“Mr. Gerstein: Well, I was called by Mr. Maple on the basis that I have
been involved in this case and have been representing the defendant in the
appellate courts, or did at least on the writ matter, and have continued to consult
with them; that they had gotten into a situation where they were concerned that
there might be a conflict in their making an argument which they felt should be
made on Mr. Snow’s behalf.
“That is to say, they were concerned because of the threat of State Bar
sanctions against them and that put them into a—
“The Court: Because of what?
“Mr. Gerstein: Because of the threat of, as I understood it, your Honor, of
State Bar sanctions against them. Possibly, because of their conduct.
“The Court: For what purpose? Why?
“Mr. Gerstein: Well, apparently because of—as I understood it, your
Honor, because of your concern that they were not making any presentation of
evidence or argument at the penalty phase in this matter.
“The Court: And what is—well, why are you here now?
65
“Mr. Gerstein: Because they felt that that put them into a, at least
awkward, an awkward situation to make the argument for their—
“The Court: They stated that they had no argument.
“Mr. Gerstein: No. I’m sorry, your Honor, their argument that they should
continue to represent Mr. Snow and that it would be an interference with his right
to counsel to have someone else now appointed by you to carry on with the
penalty phase. That argument, your Honor.
“The Court: Well, all that’s left is the arguments.
“Mr. Gerstein: Yes.
“The Court: Because there was no presentation of factors in mitigation.
“Mr. Gerstein: Yes, I understand that.
“The Court: I’ve cited the Deere case on the record.[24]
“Mr. Gerstein: Yes.
“The Court: That requires them, as officers of the court, to present factors
in mitigation, if any.
“The Court [sic: Mr. Gerstein]: Well, yes, your Honor. That was precisely
their—that was precisely their concern.
“They have shared with me some of the confidential material on the basis
of which they have made their considered judgment that, in the interest—in Mr.
Snow’s interest, that they should not present any evidence, your Honor.
“The Court: I had asked them whether or not they were doing this based
upon the request of the defendant or if it was a tactical matter, and both the
24
The court had earlier referred counsel to People v. Deere (1985) 41 Cal.3d
353.
66
attorneys had refused to answer the court. So the court was left in a dilemma of
not knowing what to do with respect to that in light of People versus Deere.
“Mr. Gerstein: Uh-huh. Well, your Honor, my understanding is that they
are—
“The Court: Now, with your statement, it appears that it’s solely tactical,
and the presumption is that evidence to the contrary, the appellate court will take
that presumption.
“Mr. Gerstein: Well, your Honor, perhaps I have gone too far in saying
that.
“The Court: Well, you’ve made the statement and I’ve accepted it.
“Mr. Gerstein: I’ve—I understand—what I do want to say, your Honor, is
that they are representing the client’s best interests in their professional judgment.
Now, I did not mean to—
“The Court: That’s all I want to hear.
“Mr. Gerstein: —I did not mean to say by that that this was not the
defendant’s judgment or that it was the defendant’s judgment, that that was not
taken into account. I have no intention of saying that or that it was a tactical
decision as opposed to any other sort of decision, but—
“The Court: Your statements to the court relieves the court’s mind in that
you have talked with the attorneys and they have indicated to you the reason.
“Mr. Gerstein: Yes.
“The Court: And I’ll accept that. I will now instruct the jury.
“Mr. Gerstein: Okay.
“The Court: Thank you.
“Mr. Gerstein: Thank you.
“The Court: Now, Mr. Snow, the law requires that the attorneys control the
proceedings as to any criminal case, and that would include the arguments or no
67
arguments. They have elected to waive arguments and that is their right. That
right affects you. So what I’m going to do is proceed and accept the waiver of
arguments and simply instruct the jury.”
Defendant made no response on the record. The prosecutors were then
readmitted to the courtroom. After further discussion of proposed instructions, the
court began instructing the jury. The penalty phase instructions included the
following admonition: “The jury is instructed not to draw any adverse inference
from the defendant’s failure to testify at the penalty trial or offer evidence in
mitigation or arguments by his attorney. The jury must decide for itself the
appropriate penalty based on the factors previously given by the court.” At the
request of the defense, the court also instructed the jury on lingering doubt and the
burden of proving identity through eyewitness testimony.
Also relevant to our inquiry regarding this claim are certain confidential
“Declaration[s] Re Preparation For Penalty Trial” filed by Miller and Maple in the
superior court’s master calendar department on the date the penalty phase was
commenced (July 17, 1990), as well as the declaration of Joel A. Sickler, a court-
appointed defense investigator, which was appended to Maple’s July 17
declaration, and a second declaration by Maple filed on July 18, the second day of
the penalty phase and the date on which the events giving rise to this claim
transpired.25
25
The documents are part of the record on appeal and are found in the
confidential supplemental clerk’s transcript on appeal, in the confidential files
maintained pursuant to section 987.9. Given that they were submitted to the
master calendar department pursuant to the confidential procedures outlined in
section 987.9, they would normally not have been brought to the attention of the
trial judge. The parties were afforded notice that the court was considering
referencing the declarations in connection with this claim. Respondent has no
objection to the unsealing of the documents. Defendant has objected, noting he
(footnote continued on next page)
68
Miller stated in his July 17 declaration, among other things, that “The
defendant advised both counsel that he would not aid in their preparation for
penalty trial. He also advised counsel that he did not want any member of his
family called as a witness at his penalty trial, and that he had instructed all family
members not to cooperate with defense counsel or their investigators. [¶] I
submitted visiting passes at the Los Angeles County Men’s Central Jail, where the
defendant is housed, on June 15, 19, 21, 22, 1990, and on July 11, 1990. The
defendant would not respond to any of the requests for a visit. He advised the
Sheriff that he was refusing, in each instance. I have not spoken to the defendant
since our last court appearance on June 12, 1990.” Miller further related that
“After a guilty verdict was rendered against the defendant, I contacted [court-
appointed defense investigator Joel A.] Sickler to . . . update an earlier report by
the California Appellate Project, interview all family members and potential
(footnote continued from previous page)
has had no opportunity to cross-examine the declarants, that the “untested and
unsubstantiated information” in the declarations is “insufficient and inappropriate
for use by this Court for purposes of direct appeal,” and that “[t]his subject is more
properly relegated to habeas corpus proceedings.”
We conclude that confidentiality no longer requires that the declarations
remain under seal, and they are hereby ordered unsealed. We agree with
defendant that the declarations are untested in that defendant as yet has had no
opportunity to cross-examine the declarants regarding the contents of the
declarations, and that although the documents are part of the record on appeal,
they may not be considered by this court as conclusive evidence bearing on the
merits of this issue in the automatic appeal. However, although we do not treat the
declarations as establishing the facts averred therein, we can and do consider them
as raising a reasonable inference that counsel had reasons for performing as they
did at the penalty phase of trial, reasons that are not fully reflected in the cold
transcript of the penalty phase proceedings. We agree with defendant that the
“subject” of counsel’s performance at the penalty phase, and the matter of the
veracity and reliability of their declarations, are “more properly relegated to
habeas corpus proceedings.”
69
penalty phase witnesses, and to inspect the defendants institutional record. Mr.
Sickler rendered his report on July 16, 1990. His report reveals, in essence,
[defendant’s] institutional record, and other facts about his family background
contained in official documents. No family member would consent to an
interview. [¶] This declaration is submitted so that the appellate Court will be
aware of the posture of the defense as we proceed into penalty trial.”
Maple stated in his first declaration (July 17, 1990), among other things,
that “On June 27, 1990 I was contacted by Harraletta Murphy, the oldest sister of
defendant . . . indicating her concern about the health of defendant. She related
that she had received a telephone call from . . . a prisoner in the Los Angeles
County Central Jail [relating] that defendant, after a visit by members of
defendant’s family at the visiting screen of the jail, reportedly had been assaulted
by deputy sheriffs in the jail and was in the hospital. Harraletta Murphy requested
that I investigate the matter. I immediately contacted the Sheriffs medical
facilities and was unable to confirm any hospitalization of the defendant.” Maple
went on to relate that he contacted Miller regarding the concerns of defendant’s
family, and that Miller informed him defendant had been refusing visits from both
Miller and defense investigator Sickler. Maple then related that on July 11, 1990,
he was contacted by Marcia Brunier, another sister of defendant who had visited
him in the jail, and “Ms. Brunier confirmed that she and other members of the
family had been advised by the defendant not to cooperate in any penalty
investigation by defense investigators and Mr. Miller but that defendant would
consent to a visit in the Central Jail Attorney Room by me [Maple] only.”
Maple continued in his declaration, “On July 12, 1990, after conferring
with [Miller and Sickler] I visited [defendant] at the Central Jail Attorney Room in
Los Angeles. In the course of the interview with the defendant, I discussed the
incident that occurred after the family visit at the Jail Visiting Screen which
70
involved a complaint by the defendant about the visiting screen telephones which
did not operate. Mr. Snow confirmed that there was a physcial [sic] encounter
between himself and members of the Sheriff’s Department because of his
persistence in making a complaint about the visit. Mr. Snow also confirmed that
he refused interviews with Mr. Miller and the penalty phase investigator and
indicated that he had advised members of his family not to assist in any
investigation by the defense for the penalty trial.”
In his affidavit dated July 16, 1990 and appended to Maple’s July 17
declaration, defense investigator Sickler averred, among other things, that on
June 7, 1990, Miller telephoned him and explained that he would be needed to
conduct a penalty phase investigation after all. Miller asked Sickler to review a
California Appellate Project penalty phase type report that had been prepared by a
California Appellate Project investigator, and “verify its contents and to update it.
He also asked me to interview Snow at the county jail, speak with members of
Snow’s family, and inspect his institutional record.” Sickler then explained, “My
investigation began on June 8, 1990. In the course of my work, I contacted several
members of defendant’s family. I was told by each family member that they
(members of the Snow family) were instructed by the defendant not to cooperate
with my investigation. In fact, the defendant’s older sister, Harraletta Murphy, his
father and step-mother, Fentress & Jacqueline Snow, told me in effect, that they
would have no comment and would not grant me an interview. In addition to
speaking with Harraletta Murphy, Fentress Snow and Jacqueline Snow, I
telephoned Marcia Brunier (a sister), Barbara Snow (a sister), Benito Snow and
Keith Snow (both brothers). Messages were left for each on approximately three
occasions. As of July 16, 1990, I did not receive a return phone call or any sort of
reply from these family members.”
71
Sickler also reported in his affidavit that he had attempted to visit defendant
in the Central Jail on July 2, 1990, and was told by the deputy on duty that
defendant was refusing to see him. Last, Sickler related that, “while I was unable
to interview Snow or any members of his family, I was able to retrieve and inspect
various public records which detailed Snow’s personal history. These records
were obtained from the California Department of Corrections, California Youth
Authority, Los Angeles County Recorder, Pasadena Board of Education, Pasadena
City College, City of Pasadena, Bushnell Optical (a private company), California
Appellate Project, and the Kansas City, Missouri, Division of Vital Records.”
In his second declaration, filed July 18, 1990, Maple stated, “On July 17,
1990, I discussed with [defendant] the impact of [defendant’s physical encounter
with sheriff’s deputies in the jail visiting room], if known to the prosecution, as
probable rebuttal evidence to any testimony that might be offered on his behalf by
penalty investigator Joel A. Sickler and shared with him the results of [Sickler’s]
investigation which contained much favorable information concerning his
[defendant’s] conduct while in custody over the years.” Maple then explained that
he was still trying to learn additional information about the “physical encounter”
incident from the jail inmate who had reported it to defendant’s sister, but that the
inmate was refusing an interview with him. Maple stated, “I told my client that in
my judgment under the circumstances and present posture of the case, that no
defense material should be presented to the jury. Mr. Snow concurred in the
judgment.”
B. Analysis
Defendant contends that the trial court, rather than accepting counsel’s
waiver of penalty phase argument on defendant’s behalf, should have appointed
new counsel for the purpose of making a penalty phase argument to the jury. If
72
additional time was needed, defendant argues, the court should have continued the
penalty trial on its own motion, or, if that course was deemed impractical because
of constraints on the jurors’ availability, declared a mistrial of the penalty phase.
The Attorney General, in response, surmises that defense counsel’s decision to
present no penalty phase argument was a tactical one. The trial court, the Attorney
General argues, could not properly have appointed new counsel for purposes of
argument merely out of disagreement with Miller’s and Maple’s sense of
“appropriate strategy.”
The issue is both complex and troubling. Troubling because, assuming a
capital murder defendant going into the sentencing phase of his trial is determined
that his life should be spared, it is difficult to imagine how a penalty phase in
which counsel present no mitigating evidence, call no witnesses, refrain from
cross-examining the prosecution’s witnesses, and make no argument to the jury on
the defendant’s behalf, could ever produce a reliable penalty verdict. On the other
hand, this claim does not arise in a vacuum. We have noted that defendant was
previously convicted and sentenced to death on the instant charges. We reversed
the earlier judgment in People v. Snow, supra, 44 Cal.3d 216, because of the
prosecutor’s misuse of peremptory challenges in jury selection. Two penalty
phases were conducted during the course of that first trial, at which Halvor Miller,
defendant’s lead counsel in this trial, was also lead defense counsel. The record of
the first penalty phase proceeding26 reflects that defendant adamantly refused to
26
By earlier order of this court, the parties were afforded notice that the court
was considering taking judicial notice of the public records of the first penalty
phase proceeding of defendant’s first trial, portions of which we now judicially
notice and make reference to herein. (Evid. Code, §§ 452, 459, subd. (b).) We
note that defendant took the position during the briefing stage of this appeal that
the record on appeal should be augmented to include the entire record of his first
trial on these charges. Now, however, defendant objects to the court taking
(footnote continued on next page)
73
cooperate with any defense strategy designed to spare his life, and indeed, was
determined to receive the death penalty.
Defendant stated on the record at the first penalty trial that he had “directed
Mr. Miller not to offer any mitigating circumstances or any mitigating evidence to
oppose the prosecution’s case of aggravating circumstances. I don’t feel that there
are any. . . . [¶] . . . [I]f I am guilty of murder, I do not want to go to prison for the
rest of my life and I would prefer—and I would explain that to the jury that I
would prefer that the jury sentence me to death.” When pressed by the trial court
as to whether they objected to defendant’s proposed course, Miller and his
cocounsel ultimately stated they took no position in light of his right to testify.
The matter proceeded accordingly, with defendant taking the stand and testifying
that in his opinion there were no factors in mitigation, that he had instructed his
attorneys not to present any argument for life imprisonment, and that he did not
want to go to prison for the rest of his life. After approximately one day of
deliberation, the jury returned a verdict of death. Thereafter, the trial court granted
a new trial motion as to penalty based upon the giving of an improper
commutation instruction. (See People v. Snow, supra, 44 Cal.3d at p. 221.)
(footnote continued from previous page)
judicial notice of a portion of the same materials, urging that, “At the first penalty
trial [defendant] expressed the sentiment that he wanted no effort expended on his
behalf and that he preferred to die rather than spend the rest of his life in prison.
This is irrelevant for purposes of resolving the instant appeal, especially since the
instant record does not reflect that [defendant] expressed any similar sentiment.”
Although we agree with defendant that evidence of his sentiments at his
first trial cannot be imputed to his state of mind at this trial, we are not considering
the portions of the transcript of the first penalty trial for that purpose, but are
instead considering the events that transpired at the first penalty trial as they bear
upon lead counsel Miller’s state of mind, knowledge, and reasons for his acts and
omissions in his representation of defendant at this penalty trial.
74
The second penalty trial did not fare much better for the defense, which
again offered no mitigating evidence, but did submit its guilt phase evidence in
support of a lingering doubt defense, which Miller argued to the jury at some
length. The second jury, like the first, returned a verdict of death.
In short, from the record of the first trial, it is quite clear that defendant at
that time was opposed to the presentation of any case in mitigation, including
argument to the jury, and that attorney Miller had to work within those extreme
limitations imposed by his client, to whatever extent possible. At the very least we
know that Miller was capable of making an appropriate record and demonstrated
that he could make a thorough final argument for lingering doubt.
The course of events at this penalty trial was even more extraordinary. The
defense not only rested without making an opening statement, calling any
witnesses, introducing any other evidence, or cross-examining any of the
prosecution witnesses, but, following the prosecutor’s closing argument, defense
counsel announced they would submit the case without any argument. Counsel
further refused to tell the court their reasons for this decision. Yet defendant,
when asked by the court at one point whether he wanted a new attorney appointed
to argue to the jury in his behalf, answered “yes.” Finally, assured by still another
attorney, who had earlier in the trial assisted Miller and Maple in presenting a
petition for writ of mandate to the Court of Appeal, that the two appointed
attorneys were “representing the client’s best interests in their professional
judgment,” the trial court accepted their decision not to make a penalty phase
argument and submitted the case to the jury.
A close reading of defendant’s supplemental brief reveals that his argument
that his death judgment must be reversed on appeal rests on two alternative
grounds. Defendant first contends that trial court error requires reversal on
appeal. He argues that the court, by refusing to appoint new counsel to make a
75
penalty phase argument after he had responded affirmatively to the court’s inquiry
whether he would accept appointment of new counsel, thereby “failed to safeguard
Mr. Snow’s rights to due process and a fair trial during the penalty phase, to assure
the attainment of a fair and accurate penalty determination, and to assure that Mr.
Snow was afforded assistance of counsel during the penalty phase.” Alternatively,
defendant argues that reversal on appeal is also required as a result of Miller’s and
Maple’s ineffective assistance of counsel at the penalty phase. The two grounds
are closely intertwined.
Defendant recognizes that normally a claim of ineffective assistance of
counsel is appropriately raised in a petition for habeas corpus (see, e.g., People v.
Mendoza Tello, supra, 15 Cal.4th 264), where relevant facts and circumstances not
reflected in the record on appeal, such as counsel’s reasons for pursuing or not
pursuing a particular trial strategy, can be brought to light to inform the two-prong
inquiry of whether counsel’s “representation fell below an objective standard of
reasonableness,” and whether “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” (Strickland v. Washington (1984) 466 U.S. 668, 688, 694.) But
defendant nonetheless also argues that counsel’s performance at the penalty phase
was so deficient that it must be deemed to have “entirely fail[ed] to subject the
prosecution’s case to meaningful adversarial testing” (United States v. Cronic
(1984) 466 U.S. 648, 659 (Cronic)), thereby relieving appellate or habeas corpus
counsel of the burden, which they would otherwise bear under Strickland v.
Washington, supra, 466 U.S. 668, of showing that specific deficiencies in trial
counsel’s performance prejudicially affected the penalty trial.
Since counsel’s assertedly deficient performance is at the root of this claim,
we address it first before turning to the closely related question whether the trial
76
court itself committed reversible error by failing to appoint new counsel to make a
penalty phase argument in defendant’s behalf.
1. Ineffective assistance of counsel
It is settled that the failure to present any mitigating evidence on behalf of
the defendant at the penalty phase of a capital murder trial does not, in and of
itself, render a judgment of death constitutionally unreliable. (People v. Lang
(1989) 49 Cal.3d 991, 1029-1033 (Lang); People v. Bloom (1989) 48 Cal.3d 1194,
1228.) As we observed in Lang, “To require defense counsel to present mitigating
evidence over the defendant’s objection would be inconsistent with an attorney’s
paramount duty of loyalty to the client and would undermine the trust, essential for
effective representation, existing between attorney and client.” (Lang, supra, at
p. 1031.)
Here, counsel’s confidential declarations in the record on appeal raise a
reasonable inference that defendant did not desire, and indeed would not permit,
defense counsel to investigate or present any family background evidence in
mitigation of penalty. According to counsel’s declarations, defendant had
instructed his family members not to cooperate with the defense, thereby
eliminating them as potential witnesses in his behalf. Defendant had also agreed
that, as a matter of trial strategy, evidence of his good conduct while in custody
should not be presented to the jury because it would open the door to impeachment
with evidence of his recent involvement in an altercation with sheriff’s deputies in
the Central Jail. On this state of the record, it may also be reasonable to infer that
counsel knew, or reasonably believed, that defendant did not desire them to
present any argument to the jury in his behalf.27 As the confidential declarations
27
On the day the jury returned its verdict of guilt, Miller requested a
continuance of the penalty phase in order to thoroughly investigate defendant’s
(footnote continued on next page)
77
outlined above reveal, defendant had steadfastly refused to cooperate with any
investigation or defense strategy in preparation of a case in mitigation of penalty.
He had instructed his relatives not to cooperate with defense counsel or their
investigator. He had refused all jailhouse visits or communication with lead
counsel Miller during the six-week break between the guilt and penalty phases of
trial—a continuance that had been granted for the very purpose of allowing further
investigation and preparation of a case in mitigation of penalty. And he had
agreed with Maple that evidence of his past good conduct while in custody should
be withheld from the jury for tactical reasons. Moreover, having represented
defendant at the first trial of these charges, Miller knew that defendant once before
had directed him not to offer any mitigating evidence in opposition to the
prosecution’s case in aggravation, and that defendant had personally taken the
stand and told the jury that in his opinion there were no factors in mitigation of
penalty, that he had instructed his attorneys not to present any argument for life
imprisonment, and that he did not want to go to prison for the rest of his life.
If the truth of the matters related in the confidential declarations are
established at a habeas corpus proceeding, it might well be concluded that counsel
must have known or believed that defendant did not want them to argue to the jury
to spare his life. But unless and until we know with certainty all the reasons for
counsel’s actions and omissions at the penalty phase, specifically, counsel’s
(footnote continued from previous page)
background in preparation of a case in mitigation of penalty. When the court
addressed defendant directly to inquire whether he would agree to the continuance,
defendant stated: “Let’s do it today and get it over with.” When the court
responded by suggesting that defendant “Talk to your attorneys, please,”
defendant again repeated, “Do it today and get it over with.” After further
discussion, the court ultimately granted the defense a continuance of nearly six
weeks for further preparation of the defense case in mitigation.
78
determination to waive penalty phase arguments, we cannot make a fully informed
judgment as to whether Miller and Maple rendered ineffective assistance of
counsel at that phase of trial based on the record on appeal. (People v. Mendoza
Tello, supra, 15 Cal.4th at pp. 266-267.) Although Miller and Maple, reasonably
or unreasonably, obviously believed that confidentiality or attorney-client
privilege prohibited them from revealing to the court their reasons for forgoing the
presentation of any mitigating evidence, it is less clear from the record what
motivated counsel to refrain from making any penalty phase argument. Similarly,
although counsel may have reasonably believed that to make a penalty phase
argument to the jury to spare defendant’s life would contravene defendant’s
wishes, given all of his efforts to thwart the investigation or preparation of a case
in mitigation of penalty, to so conclude on this record would likewise require
speculation.
It is clear that the court ultimately determined to defer to Miller and
Maple’s reasoned judgment, once the court became convinced, after hearing
attorney Gerstein state that “they are representing the client’s best interests in their
professional judgment,” that Miller and Maple were acting consistently with their
client’s desires or interests. What remains unclear from the record on appeal is
precisely what reasons in fact led counsel to conclude that penalty phase
arguments should be waived.
The Attorney General “surmises that defense counsel sought to preserve an
inadequacy of counsel issue for appeal.” As the argument goes, one can imagine
no valid strategic reason for competent defense counsel to waive penalty phase
arguments on behalf of the defendant in the face of his express wishes to the
contrary. Accordingly, by opting to forgo making an opening statement, calling
any witnesses, introducing any other evidence, or cross-examining any of the
prosecution witnesses, Miller and Maple must have intended to lay the
79
groundwork for a successful claim, on appeal or in a petition for writ of habeas
corpus, that they had “entirely fail[ed] to subject the prosecution’s case to
meaningful adversarial testing” (Cronic, supra, 466 U.S. at p. 659), thereby
relieving appellate or habeas corpus counsel of their usual burden under Strickland
v. Washington, supra, 466 U.S. 668, of establishing prejudice from counsel’s
deficient performance.
The problem with this argument, separate and apart from its speculation
that trial counsel were willing to cast aside their ethical obligations and fall on
their swords to build reversible error into the trial of a client who was adamantly
unwilling to assist or cooperate with them in preparing a defense in a trial for his
life,28 is that it fails to assign to defendant any role or responsibility whatsoever
for the manner in which the penalty phase of his trial unfolded below. Indeed,
defendant suggests in his supplemental brief that “[a]s usual, caught in the middle
of the debacle was Mr. Snow”—the “debacle” being counsel’s asserted wholesale
abandonment of their client at the penalty phase and the trial court’s erroneous
refusal to appoint new counsel for the purpose of making a penalty phase
argument in the face of counsel’s deficient performance.
Unlike defendant and our colleagues in dissent, we are unwilling to repose
uncritical confidence in defendant’s single answer “yes” to the court’s initial
28
The very fact that Miller and Maple saw fit to file confidential declarations
with the master calendar judge relating their difficulty in obtaining defendant’s
cooperation in the investigation and preparation of a penalty phase defense
militates against an inference that they intentionally forwent the presentation of
penalty phase arguments for the purpose of building reversible error into their
client’s cause. Miller concluded his declaration with the statement that, “This
declaration is submitted so that the appellate Court will be aware of the posture of
the defense as we proceed into penalty trial.” Why would he include such an
explanation if he was intent on building reversible error into defendant’s trial?
80
inquiry whether he would agree to a substitution of counsel for the purpose of
making a penalty phase argument.29 Nor do we believe that defendant’s
affirmation that he would accept the appointment of new counsel for the purpose
of making a penalty phase argument necessarily reflects that Miller and Maple
contravened defendant’s express wishes by themselves refusing to make such an
argument, thereby rendering ineffective assistance of counsel. Defendant’s
affirmative answer to the court’s inquiry, if considered in isolation, might support
an inference that he wanted a penalty phase argument made in his behalf, whether
by Miller and Maple or, if they would not do so, then by newly appointed counsel.
But what should we make of defendant’s other conduct, which was entirely
inconsistent with such an inference? What would defendant have expected Miller
and Maple to argue to the jury once he had thwarted their every effort to
investigate and prepare a defense in his behalf for the penalty phase? And what
could defendant have reasonably expected newly appointed counsel to argue in his
behalf, given the restraints he had placed on his own penalty trial? It is perhaps
just as likely that defendant answered “yes” to the court’s inquiry upon realizing
that the appointment of new counsel at that late stage of trial might result in a
lengthy delay or continuance, or perhaps even better, a mistrial. But once again, to
29
No less than six times in the concurring and dissenting opinion, defendant’s
single answer “yes” to the court’s initial inquiry is characterized as a specific,
express, and unambiguous request for the appointment of new counsel. (See post,
at pp. 2 [“indeed, he expressly requested—the presentation of an argument to the
jury” (italics in original) and “expressly requested new counsel”], 3 [“defendant
instead asked for another lawyer to be appointed to do what his current lawyers
refused to do” with an “express and unambiguous statement on the record”], 5,
fn. 2 [“defendant specifically and expressly stated that he did want argument
presented on his behalf” (italics in original)], 13 [trial court accepted counsel’s
waiver of argument “contrary to defendant’s expressed wishes”] (conc. & dis. opn.
of Werdegar, J.).)
81
so conclude would require some measure of speculation on the limited record on
appeal before us. We nevertheless view all the circumstances as raising a
reasonable doubt that defendant, by his single answer “yes” to the court’s inquiry,
was necessarily expressing a genuine and unambiguous desire that a penalty phase
argument be made to spare his life.
Notwithstanding defendant’s unwillingness to cooperate in his own penalty
phase defense, and his agreement with Maple that mitigating evidence of his good
conduct while in custody should not be presented for tactical reasons, it might still
be concluded that counsel, at the very least, could have argued lingering doubt to
the jury, consistent with defendant’s position at the guilt phase that he had nothing
to do with Koll’s murder. But then again, Miller had taken that tack at the second
penalty phase of defendant’s first trial, and he knew that, as a matter of trial
tactics, it had proved unsuccessful on that occasion. Experience therefore may
have led Miller to conclude that, once this jury unanimously found that the guilt
phase evidence established defendant as Koll’s murderer beyond a reasonable
doubt, it was better to simply submit the matter of lingering doubt at the penalty
phase on an appropriate lingering doubt instruction, without arguing lingering
doubt to the jury and thereby drawing further attention to the guilt phase evidence.
As the high court explained in Cronic, “Of course, the Sixth Amendment
does not require that counsel do what is impossible or unethical. If there is no
bona fide defense to the charge, counsel cannot create one and may disserve the
interests of his client by attempting a useless charade. [Citation.]” (Cronic, supra,
466 U.S. at p. 656, fn. 19.) We recognize that Cronic was not a capital murder
case.30 And we further recognize that, at least in the abstract, there can always be
30
Cronic involved an indictment of a defendant on multimillion dollar mail
fraud charges. When the defendant’s retained counsel withdrew shortly before the
(footnote continued on next page)
82
a bona fide argument made to the jury at the penalty phase of a capital murder trial
that the defendant’s life should be spared. But as we explained in Lang, which
was an automatic appeal from a judgment of death, “an attorney’s duty of loyalty
to the client means the attorney should always remember that the decision whether
to forego legally available objectives or methods because of non-legal factors is
ultimately for the client . . . .’ (ABA Model Code Prof. Responsibility, EC 7-8.)”
(Lang, supra, 49 Cal.3d at p. 1031, italics added.)
If Miller and Maple, knowing their client had refused to permit them to
conduct a meaningful investigation to build a case in mitigation of penalty, also
knew, or reasonably believed, that defendant was likewise desirous that no
argument be presented to the jury in his behalf, it might well be concluded that
counsel were simply following what they believed were their client’s wishes in
waiving penalty phase arguments, and such omission would not constitute
ineffective assistance of counsel within the meaning of Strickland v. Washington,
supra, 466 U.S. 668. Indeed, we might conclude on that same showing, that
(footnote continued from previous page)
start of trial, the district court appointed a young and relatively inexperienced real
estate attorney who had never before participated in a jury trial to represent
defendant, and afforded him only 25 days to prepare for trial. (Cronic, supra, 466
U.S. at pp. 649-650.) Nevertheless, the high court in Cronic on those facts held
that the court of appeals had erred in finding a Sixth Amendment violation of the
right to counsel that “was not supported by a determination that [defendant’s] trial
counsel had made any specified errors, that his actual performance had prejudiced
the defense, or that he failed to exercise ‘the skill, judgment, and diligence of a
reasonably competent defense attorney’ . . . ,” but instead “rested on the premise
that no such showing is necessary ‘when circumstances hamper a given lawyer’s
preparation of a defendant’s case.’ ” (Cronic, supra, at p. 650.) Put differently,
the high court in Cronic concluded that the court of appeals had erred in failing to
require a showing of prejudice resulting from counsel’s deficient performance
under the second prong of Strickland v. Washington, supra, 466 U.S. 668.
83
defendant, by his own actions, is estopped at the threshold from claiming
ineffective assistance based on counsel’s acquiescence in his wishes. (See
discussion, post, at p. 89; see Lang, supra, 49 Cal.3d at pp. 1030-1031.) But once
again, until counsel are afforded an opportunity to fully explain their reasons for
refraining from making a penalty phase argument below, reasons that are not fully
amplified in the record on appeal, there is neither an adequate factual or legal basis
upon which to predicate a reversal of the death judgment on grounds of ineffective
assistance of counsel.
Nor does the high court’s recent decision in Bell v. Cone (2002) 535 U.S.
685 (Cone) [122 S.Ct. 1843] lend any further support to defendant’s claim that his
death judgment must be reversed on appeal, under the holding of Cronic, because
counsel rendered ineffective assistance in waiving penalty phase arguments. In
Cone, the defendant was convicted of, and sentenced to death for, the murder of an
elderly couple in Memphis, Tennessee. (Id. at p. ___ [122 S.Ct. at p. 1847].) The
defense conceded that the defendant had committed the murders, but sought to
prove he was not guilty by reason of insanity. In furtherance of that effort, the
defense presented evidence that the defendant “suffered from substance abuse and
posttraumatic stress disorders related to his military service in Viet Nam.” (Id. at
p. ___ [122 S.Ct. at p. 1848].) The jury rejected his insanity defense and found
him guilty of two counts of first degree murder. The capital sentencing hearing
took place the next day and lasted approximately three hours. (Ibid.) At that
hearing, defense counsel made an opening statement in which he called the jury’s
attention to the mitigating evidence already before them and suggested that the
defendant “was under the influence of extreme mental disturbance or duress, that
he was an addict whose drug and other problems stemmed from the stress of his
military services, and that he felt remorse.” (Ibid.) After both sides rested, the
junior prosecuting attorney gave a “ ‘low key’ ” closing argument, after which
84
defense counsel waived closing argument, thereby “preventing the lead
prosecutor, who by all accounts was an extremely effective advocate, from
arguing in rebuttal.” (Ibid.) Under these circumstances, the high court held, a
state court’s characterization of counsel’s waiver of final argument as a competent
tactical choice was not an “unreasonable” application of Strickland v. Washington,
supra, 466 U.S. 668. (Cone, supra, at pp. __-__ [122 S.Ct. at pp. 1852-1854].)
Observing that the waiver of closing argument is “plainly of the same ilk as other
specific attorney errors we have held subject to Strickland’s performance and
prejudice components” (id. at p. ___ [122 S.Ct. at p. 1852]), the high court in
Cone concluded that its holding in dicta in Cronic, supra, 466 U.S. 648—that
prejudice may be presumed “if counsel entirely fails to subject the prosecution’s
case to meaningful adversarial testing” (id. at p. 659)—was inapplicable to
defense counsel’s waiver of closing argument.
Defendant seeks to distinguish Cone on its facts, pointing out that by the
time of the capital sentencing hearing in that case, counsel had already put
considerable mitigating evidence before the jury in connection with the guilt and
sanity phases of trial, and in his opening penalty phase statement had brought that
evidence to the jury’s attention, urging them to consider it in determining the
appropriate penalty. But we find another distinguishing aspect of Cone of greater
significance here—Cone had reached the high court in the procedural posture of a
federal habeas corpus proceeding “[a]fter a hearing in which [defendant’s] trial
counsel testified” (Cone, supra, 535 U.S. at p. ___ [122 S.Ct. at p. 1845]), an
evidentiary hearing that in turn furnished the basis for the state criminal court’s
rejection of Cone’s claim that his counsel rendered ineffective assistance by
failing to present mitigating evidence and waiving final argument at the capital
sentencing hearing, and its denial of postconviction habeas corpus relief. (Ibid.)
85
Here, we hold only that defendant’s assertion that Miller and Maple
rendered ineffective assistance of counsel in waiving penalty phase arguments
must properly await resolution on a fully developed factual record in a habeas
corpus proceeding appropriately instituted in conjunction with this appeal. The
high court’s decision in Cone fully supports that disposition of defendant’s claim
on appeal.
2. Trial court error
We now turn to defendant’s closely related claim that the trial court erred in
failing to protect his Sixth Amendment right to counsel by not following through
on the court’s initially stated intent to appoint new counsel for the purpose of
making a penalty phase argument. Our dissenting colleagues agree with
defendant’s contention that once defendant answered “yes” to the court’s initial
inquiry as to whether he wanted substitute counsel appointed for the sole purpose
of making an argument to the jury, the court had no choice but to appoint new
counsel for that single purpose. On this state of the record we cannot agree.
It is true that the trial court expressed astonishment, as well might be
expected, when Maple announced on behalf of himself and Miller that the defense
would rest without presenting any argument to the jury. It is also true, however,
that because Miller and Maple obviously believed that confidentiality or attorney-
client privilege precluded them from informing the court of their reasons for
electing their chosen course of action at the penalty trial, the court was left largely
in the dark regarding counsel’s reasons for failing to call any witnesses or present
any mitigating evidence. Although the court questioned defendant at the
conclusion of the prosecution’s case in aggravation of penalty and did learn that
defendant had consulted with counsel, had been informed of his right to present
mitigating evidence, and was forgoing exercise of that right, the court apparently
86
was not aware that defendant had instructed his family members not to cooperate
with the defense investigation, had steadfastly refused to assist Miller, Maple, and
defense investigator Sickler in any way with their investigation of a penalty phase
defense, and had refused all contact or communication with counsel and the
investigator, with the exception of two contacts with attorney Maple, one on July
12, 1990, five days before the scheduled start of the penalty trial, and the other on
July 17, 1990, the day the penalty trial commenced. In those two contacts with
Maple, defendant confirmed that he had refused any interviews with Miller and
investigator Sickler, and had instructed members of his family not to cooperate or
assist in any investigation by the defense. Defendant also agreed with Maple that
as a result of his altercation with sheriff’s deputies in the jail, evidence from
institutional records of his good conduct while incarcerated over the years should
not be presented to the jury.
The record further reflects that the court was laboring under the mistaken
assumption that this court’s 1985 decision in People v. Deere, supra, 41 Cal.3d
353 (Deere I), required counsel to present any available evidence in mitigation of
penalty even over a defendant’s expressed objections. This was not the state of
the law, however, by the time defendant’s penalty phase was conducted in June
1990.
As we explained in People v. Deere (1991) 53 Cal.3d 705 (Deere II), in
response to Deere’s claim that his counsel rendered ineffective assistance in
failing to present evidence in mitigation: “The claim is totally without merit, if
not specious. [¶] As noted earlier, we held in Deere I, supra, 41 Cal.3d 353, that
defendant was denied adequate representation at the penalty phase as a result of
counsel’s failure to present evidence in mitigation, notwithstanding defendant’s
unequivocal desire that no such evidence be presented. Defendant was
represented at the penalty retrial by the same deputy public defender who had
87
appeared on his behalf at the first trial. Defendant’s views with respect to the
presentation of mitigating evidence also remained unchanged; defendant was
adamant, in counsel’s words, that ‘[h]e does not want any evidence presented on
his behalf because in his heart that is his private life and to bring that evidence into
court would violate his relationships with everybody he holds dear and respects in
this world. And to him, those relationships are more important than anything else,
including his life.’ [¶] Thus, counsel was confronted with the unenviable and
wrenching choice of obeying the law as defined by this court in Deere I, or
honoring his client’s deeply held convictions. To make the dilemma even more
acute, the trial court ordered counsel to present whatever mitigating evidence was
available in accordance with our decision, or be held in contempt.” (Deere II,
supra, at p. 714.)
We went on to explain in Deere II, in the following three quoted
paragraphs, that:
“Furthermore, decisions subsequent to the instant penalty retrial have
largely undermined the court’s holding in Deere I. As explained in People v.
Bloom (1989) 48 Cal.3d 1194, which held that a sentence of death was not
constitutionally unreliable merely because a self-represented defendant chose not
to present mitigating evidence at the penalty phase: ‘To the extent that Deere,
supra, 41 Cal.3d 353, suggests that failure to present mitigating evidence in and of
itself is sufficient to make a death judgment unreliable, it is based on a mistaken
understanding of the Eighth Amendment’s reliability requirement and its
reasoning in that regard is hereby disapproved.’ (Id. at p. 1228, fn. 9, italics
added.) Rather, ‘the required reliability is attained when the prosecution has
discharged its burden of proof at the guilt and penalty phases pursuant to the rules
of evidence and within the guidelines of a constitutional death penalty statute, the
death verdict has been returned under proper instructions and procedures, and the
88
trier of penalty has duly considered the relevant mitigating evidence, if any, which
the defendant has chosen to present.’ (Id. at p. 1228.)
“We further underscored our disapproval of Deere I in People v. Lang
(1989) 49 Cal.3d 991: ‘Deere was disapproved [in People v. Bloom] to the extent
it suggests that a defendant’s failure to present mitigating evidence, in and of
itself, is sufficient to make a judgment of death constitutionally unreliable.’ (Id. at
p. 1030.) Indeed, Lang went on to reject explicitly the proposition that ‘defense
counsel should be forced to present mitigating evidence over the defendant’s
objection,’ noting that it contravenes the attorney’s ‘paramount duty of loyalty to
the client,’ undermines ‘the trust, essential for effective representation, existing
between attorney and client,’ and ultimately reduces the quality of that
representation by forcing defendants ‘who otherwise would not have done so to
exercise their Sixth Amendment right of self-representation . . . . in order to retain
control over the presentation of evidence at the penalty phase . . . .’ (Id. at pp.
1030-1031.)
“Finally, as further noted in People v. Lang, a defendant who insists that
mitigating evidence not be presented at the penalty phase is estopped from later
claiming ineffective assistance based on counsel’s acquiescence in his wishes.
‘The invited-error doctrine operates, in particular, to estop a defendant claiming
ineffective assistance of counsel based on counsel’s acts or omissions in
conformance with the defendant’s own requests.’ (49 Cal.3d at p. 1032, fn.
omitted.)” (Deere II, supra, 53 Cal.3d at pp. 716-717.)
Bloom was decided in June 1989. Lang was decided in December 1989.
By the time of defendant’s penalty trial in July 1990, our decisions in Lang and
Bloom had announced that the rule of Deere I—that counsel was required to
present any available evidence in mitigation of penalty even over the defendant’s
objection—was disapproved. It is clear from the transcript of the July 18
89
proceedings that the trial court in this case mistakenly believed Deere I obligated
Miller and Maple to present any available mitigating evidence even over
defendant’s objections.31 And although it cannot be discerned with certainty from
this record whether Miller, Maple, and Gerstein knew that the court was laboring
under a mistaken understanding of the applicable law, we surmise from the
transcript of the July 18 proceedings that the disparity between the court’s and
counsel’s understanding of counsel’s obligation to present mitigating evidence
even over defendant’s objection, was at the heart of the standoff between counsel
and the court that led the court to suggest it might need the assistance of a member
of the State Bar, and Miller and Maple to respond by securing the attendance of
attorney Gerstein to explain to the court that counsel had their confidential reasons
for refusing to present any mitigating evidence.
Although the record on appeal is less clear regarding Miller and Maple’s
specific reasons for waiving penalty phase argument than it is regarding their
reasons for failing to call any witnesses or present any mitigating evidence, the
record rather clearly reflects that once the trial court was satisfied that Miller and
Maple had their reasons for not presenting any mitigating evidence, the court was
also inclined to accept that they had tactical or other sound reasons for waiving
penalty phase argument, and to defer to their judgment in that regard as well.
Our dissenting colleagues conclude that “the court’s erroneous acceptance
of counsel’s waiver of argument, following as it did their decision not to make any
opening statement, present any mitigating evidence, or cross-examine any of the
31
“The Court: I’ve cited the Deere [I] case on the record.” [¶] “Mr. Gerstein:
Yes.” [¶] “The Court: That requires them, as officers of the court, to present
factors in mitigation, if any.” [¶] “The Court [sic: Mr. Gerstein]: Well, yes, your
Honor. That was precisely their—that was precisely their concern.”
90
People’s witnesses, resulted in what may be described either as a ‘complete denial
of counsel’ (United States v. Cronic, supra, 466 U.S. at p. 659) at the critical stage
of jury argument or as a complete failure of the defense to subject the
prosecution’s penalty phase case ‘to meaningful adversarial testing’ (ibid.). Either
way, ‘there has been a denial of Sixth Amendment rights that makes the
adversarial process itself presumptively unreliable.’ (Ibid.)” (Post, at pp. 10-11,
italics added (conc. & dis. opn. of Werdegar, J.).) As the italicized language
above reveals, although the dissent purports to argue that trial court error alone
requires reversal on appeal, in actuality the dissent has concluded that the trial
court’s refusal to appoint new counsel to make a penalty phase argument, in the
face of counsel’s omissions and ineffective representation leading up to that
determination, together resulted in a violation of defendant’s Sixth Amendment
right to counsel. The problem with this reasoning is that our precedents normally
do not permit us to conclude that counsel’s performance fell below an objectively
reasonable standard of representation on a cold record on appeal. (People v.
Mendoza Tello, supra, 15 Cal.4th 264.) The circumstances related in Miller’s,
Maple’s, and investigator Sickler’s confidential declarations serve as a good
example of the reason for the rule.
We conclude that if, on an appropriately expanded factual record on habeas
corpus, Miller and Maple are shown to have acted within an objectively
reasonable standard of representation (Strickland v. Washington, supra, 466 U.S.
at pp. 688, 694) in refraining from presenting any argument to the jury consistent
with what they reasonably believed were their client’s wishes, it would be
anomalous, in the face of such an informed finding, to fault the trial court for
ultimately deferring to counsel’s judgment and determining not to substitute new
counsel in the eleventh hour of this trial. To reverse the judgment on appeal for
trial court error without garnering all the relevant facts would be tantamount to
91
handing defendant a technical victory when, in actuality, defendant may have
received precisely the kind of penalty phase representation he desired and sought
below. We therefore reject defendant’s claim that the trial court’s failure to
appoint new counsel to make a penalty phase argument violated his Sixth
Amendment right to counsel. The Sixth Amendment claim is more appropriately
addressed in the context of the claim of ineffective assistance of counsel, which
must be presented in a habeas corpus petition in conjunction with this appeal.
We caution that our conclusion in this regard must not be understood as an
endorsement of the wholesale abdication of all meaningful representation of a
client by counsel at the penalty phase of a capital murder trial. This penalty phase
had none of the hallmarks of a capital sentencing proceeding whereby the defense
makes a determined effort to convince the jury to spare the defendant’s life. But
the question posed is not whether a penalty phase in which there is no defense
opening statement, no cross-examination of the prosecution’s witnesses, and no
presentation of defense evidence or argument in mitigation of penalty, can ever, as
a matter of sound trial tactics, lead to a reliable penalty verdict. Rather, the
question left open for decision on habeas corpus is whether counsel’s failure to
present a penalty phase argument did or did not fall within an objectively
reasonable standard of penalty phase representation (Strickland v. Washington,
supra, 466 U.S. at pp. 688, 694) in light of the totality of circumstances which
counsel faced at the penalty trial below. If, on a fully developed factual record on
habeas corpus, counsel’s decision to refrain from making a penalty phase
argument is shown to have fallen within that standard, then defendant may be
estopped at the threshold from claiming ineffective assistance of counsel (Lang,
supra, 49 Cal.3d at pp. 1030-1031), and as a consequence of his refusal to
cooperate and reasonably communicate with counsel and their defense
investigator, defendant would bear the ultimate responsibility for the irregularity
92
of his penalty phase proceedings below. On the other hand, if, on a fully
developed factual record, it is shown that counsel’s decision to forgo penalty
phase argument fell below the applicable standard of competent representation, we
will not hesitate to reverse the penalty judgment on habeas corpus and remand the
matter for a new penalty trial.
XXIV. Inadequate Response to Jury Question About Parole
During its penalty deliberations, the jury sent out a note asking, “If we give
life imprisonment without possibility of parole, can we be assured he will never
be[] released from prison.” Defense counsel urged the court to tell the jury “life
imprisonment without possibility of parole means exactly what it said.” The court
instead told the jury to reread the instructions and that “we will have you apply
common meaning to the two possible verdicts of death or life imprisonment
without possibility of parole.” Defendant contends this response violated his
rights under the Sixth, Eighth, and Fourteenth Amendments to the United States
Constitution.
We disagree. The court’s response did not differ significantly from that
which defense counsel sought. The “common meaning” of “life imprisonment
without possibility of parole” is that the defendant will be imprisoned for the rest
of his life, without any possibility of release on parole. This is the same meaning
conveyed by counsel’s suggested response that the term “means exactly what it
said.” The court’s response also satisfied our holding in People v. Kipp (1998) 18
Cal.4th 349, that when the jury expresses a concern regarding the effect of a life-
without-parole sentence, the court should instruct the jury “to assume that
whatever penalty it selects will be carried out” or give a “a comparable
instruction.” (Id. at pp. 378-379.)
93
Three United States Supreme Court decisions stemming from death
sentences imposed under South Carolina law are readily distinguishable, in that
the juries in those cases were told that the alternative to a death sentence was one
of “life imprisonment” without instruction that a capital defendant given such a
sentence would not be eligible for parole. (Kelly v. South Carolina (2002) 534
U.S. 246, 250; Shafer v. South Carolina (2001) 532 U.S. 36, 44-45; Simmons v.
South Carolina (1994) 512 U.S. 154, 158-160.) Here, the jury was told that the
alternative to death was life imprisonment “without possibility of parole,” and that
that phrase should be understood in its ordinary sense. Those instructions were
sufficient to inform the jury that defendant would not be eligible for parole.
XXV. Failure to Instruct, Sua Sponte, that Jury Could Choose Life
Sentence Even if It Found No Mitigating Evidence
Defendant contends the trial court should, on its own motion, have
instructed the jury to the effect that “[t]he jury may decide, even in the absence of
mitigating evidence, that the aggravating evidence is not comparatively substantial
enough to warrant death.” (See People v. Duncan (1991) 53 Cal.3d 955, 979
[stating principle].) The court’s failure to do so assertedly violated defendant’s
rights under the Eighth and Fourteenth Amendments to the United States
Constitution.
The jury here was instructed that it could consider in mitigation “[a]ny
other circumstance which extenuates the gravity of the crime . . . and any
sympathetic or other aspect of the defendant’s character or record” (CALJIC No.
8.85, factor (k)), that the weighing of aggravating and mitigating circumstances is
not “a mere mechanical counting of factors on each side of an imaginary scale”
(CALJIC No. 8.88), that the jury was free “to assign whatever moral or
sympathetic value you deem appropriate” to each factor (ibid.), and that a death
sentence could be returned only if each juror found the aggravating circumstances
94
“so substantial” in relation to the mitigating ones as to warrant that penalty (ibid.).
As in previous cases, we find no reasonable likelihood that a juror so instructed
would believe he or she was required to impose death, despite insubstantial
aggravating evidence, merely because no mitigating circumstances were found.
(People v. Anderson (2001) 25 Cal.4th 543, 600, fn. 20; People v. Johnson (1993)
6 Cal.4th 1, 52.) In addition, the jury here was instructed, on the court’s own
motion, “not to draw any adverse inferences from the defendant’s failure to . . .
offer evidence in mitigation or arguments by his attorneys. [¶] The jury must
decide for itself the appropriate penalty based on the factors previously given by
the court.” This special instruction further guarded against the possibility a juror
would believe the absence of mitigating evidence mandated a sentence of death.
XXVI. Inadequate Instruction on Lingering Doubt
Defense counsel submitted a proposed instruction on lingering or residual
doubt. The court gave the instruction as modified, omitting certain text, which
apparently consisted of the struck-through portions below:
“Although proof of guilt beyond a reasonable doubt has been found, you
may demand a greater degree of certainty for the imposition of the death penalty.
The adjudication of guilt is not infallible and any lingering doubt you entertain on
the question of guilt may be considered by you in determining the appropriate
penalty, including the possibility that at some time in the future, facts may come to
light that have not yet been discovered. Each individual juror may consider as a
mitigating factor residual or lingering doubt as to whether the defendant killed the
victim. Lingering or residual doubt is defined as a state of mind between beyond a
reasonable doubt and all possible doubt. Thus if any individual juror has a
lingering or residual doubt about whether the defendant intentionally killed the
95
victim, he or she must may consider this as a mitigating factor and assign to it the
weight you deem appropriate.”
Defendant contends the court’s modification diluted the instruction on
lingering doubt in violation of the Sixth, Eighth, and Fourteenth Amendments to
the United States Constitution. We disagree. Though we have characterized the
omitted second sentence of the defense proposal favorably as a “straightforward
instruction” (People v. Morris (1991) 53 Cal.3d 152, 219), we have never
suggested that it was required in every, or any, case. The remaining portions
adequately convey the concept of lingering doubt and its proper relevance to the
penalty decision. Nor does defendant cite any decision holding that a juror’s
lingering doubt “must,” as opposed to “may,” be considered in mitigation. (See
Tuilaepa v. California (1994) 512 U.S. 967, 979 [“A capital sentencer need not be
instructed how to weigh any particular fact in the capital sentencing decision”].)
XXVII. Constitutional Challenges to California’s Death Penalty Law
Defendant contends that the 1978 death penalty scheme violates the Fifth,
Sixth, Eighth, and Fourteenth Amendments to the United States Constitution in
several respects.
As defendant concedes, we have previously rejected many of his claims in
this regard. Thus, we have held:
The special circumstances listed in section 190.2 adequately narrow the
class of murders for which the death penalty may be imposed. (People v.
Anderson, supra, 25 Cal.4th at p. 601; People v. Ochoa (1998) 19 Cal.4th 353,
479; People v. Frye, supra, 18 Cal.4th at p. 1029.)
The statute is not invalid for failing to require (1) written findings or
unanimity as to aggravating factors, (2) proof of all aggravating factors beyond a
reasonable doubt, (3) findings that aggravation outweighs mitigation beyond a
96
reasonable doubt, or (4) findings that death is the appropriate penalty beyond a
reasonable doubt. (People v. Kipp (2001) 26 Cal.4th 1100, 1137; People v.
Ochoa, supra, 19 Cal.4th at p. 479; People v. Frye, supra, 18 Cal.4th at
p. 1029.)32
The jury may consider prior unadjudicated criminal activity under section
190.3, factor (b). (People v. Jenkins (2000) 22 Cal.4th 900, 1054; People v.
Barnett (1998) 17 Cal.4th 1044, 1178.)
Prosecutorial discretion to select those death-eligible cases in which the
death penalty will actually be sought is not constitutionally impermissible.
32
In his reply brief, defendant argues that Apprendi v. New Jersey (2000) 530
U.S. 466 mandates that aggravating circumstances necessary for the jury’s
imposition of the death penalty be found beyond a reasonable doubt. We reject
that argument for the reason given in People v. Anderson, supra, 25 Cal.4th at
pages 589-590, footnote 14: “[U]nder the California death penalty scheme, once
the defendant has been convicted of first degree murder and one or more special
circumstances has been found true beyond a reasonable doubt, death is no more
than the prescribed statutory maximum for the offense; the only alternative is life
imprisonment without possibility of parole. (§ 190.2, subd. (a).) Hence, facts
which bear upon, but do not necessarily determine, which of these two alternative
penalties is appropriate do not come within the holding of Apprendi.” The high
court’s recent decision in Ring v. Arizona (2002) 536 U.S. 584 [122 S.Ct. 2428]
does not change this analysis. Under the Arizona capital sentencing scheme
invalidated in Ring, a defendant convicted of first degree murder could be
sentenced to death if, and only if, the trial court first found at least one of the
enumerated aggravating factors true. (Id. at p. ___ [122 S.Ct. at p. 2440].) Under
California’s scheme, in contrast, each juror must believe the circumstances in
aggravation substantially outweigh those in mitigation, but the jury as a whole
need not find any one aggravating factor to exist. The final step in California
capital sentencing is a free weighing of all the factors relating to the defendant’s
culpability, comparable to a sentencing court’s traditionally discretionary decision
to, for example, impose one prison sentence rather than another. Nothing in
Apprendi or Ring suggests the sentencer in such a system constitutionally must
find any aggravating factor true beyond a reasonable doubt.
97
(People v. Anderson, supra, 25 Cal.4th at pp. 601-602; People v. Kipp, supra, 26
Cal.4th at p. 1137; People v. Keenan (1988) 46 Cal.3d 478, 505.)
Comparative intercase proportionality review by the trial or appellate courts
is not constitutionally required. (People v. Kipp, supra, 26 Cal.4th at p. 1139;
People v. Lucero (2000) 23 Cal.4th 692, 741.)
International law does not compel the elimination of capital punishment in
California. (People v. Ghent (1987) 43 Cal.4th 739, 779.)
We are not persuaded that we should reconsider our previous rulings on
these issues.
Defendant, relying on a dissenting opinion in Jeffers v. Lewis (9th Cir.
1994) 38 F.3d 411, 425-427, contends that the administration of California’s death
penalty is impermissibly arbitrary in that, out of the many people sentenced to
death, only an unsystematically chosen few have yet been executed. The federal
appellate court has rejected this argument (Woratzeck v. Stewart (9th Cir. 1997)
118 F.3d 648, 652); we do so as well. “If Woratzeck’s death sentence does not
violate the Eighth Amendment, then neither does the scheduling of his execution.
Arizona must establish some order of execution. There has been no prima facie
showing that this scheduling violates the Eighth Amendment.” (Ibid.) The same
is true here. Defendant does not face imminent execution and can hardly claim he
is being singled out for either quick or slow treatment of his appeal and habeas
corpus proceedings. More generally, defendant makes no showing that the
number of condemned prisoners executed in California, or the order in which their
execution dates are set, is determined by any invidious means or method, with
discriminatory motive or effect, or indeed according to anything other than the
pace at which various defendants’ appeals and habeas corpus proceedings are
concluded, a matter by no means within the sole control of the state.
98
XXVIII. Delay in Hearing Defendant’s Appeal and His Execution After
Such Delay
Defendant contends that the delay in appointing appellate counsel and
hearing this automatic appeal (from the judgment in September 1990 to the
present) deprived him of due process, and that his execution after such delay
would serve no legitimate penological purpose and would therefore violate the
Eighth Amendment to the United States Constitution. We have rejected
substantially identical contentions in several recent cases (People v. Ochoa (2001)
26 Cal.4th 398, 462-464; People v. Anderson, supra, 25 Cal.4th at pp. 605-606;
People v. Frye, supra, 18 Cal.4th at pp. 1030-1031) and find no cause to
reconsider those decisions here.
XXIX. Challenges to the Method of Execution
Defendant raises various challenges to the constitutionality of execution by
lethal injection and by lethal gas. We have previously rejected such claims as
noncognizable on appeal and as lacking merit. (See People v. Holt (1997) 15
Cal.4th 619, 702 [claim noncognizable because “an imperfection in the method of
execution does not affect the validity of the judgment and is not a basis for
reversal of the judgment on appeal”; claim as to lethal injection also fails on merits
because it is “based on anecdotal evidence of the administration of lethal injection
in other states, and does not support a conclusion that this method of execution as
administered in California violates the Eighth Amendment”]; People v. Bradford
(1997) 14 Cal.4th 1005, 1058-1059 [lethal gas not unconstitutional method in light
of § 3604, subd. (b), which provides persons under sentence of death with the
choice of gas or injection; claim also premature in that it does not bear on the
validity of the death sentence itself].) Nor can the application to defendant of
section 3604, as amended in 1992, be considered an ex post facto law, or a bill of
attainder, for it did not increase, or make more burdensome in any way,
99
defendant’s punishment. (See Vickers v. Stewart (9th Cir. 1998) 144 F.3d 613,
617; Poland v. Stewart (9th Cir. 1997) 117 F.3d 1094, 1105.)
XXX. Cumulative Prejudice from Errors
Defendant contends that the prejudicial effect of all guilt and penalty phase
errors, taken together, requires reversal of the judgment or, at least, of the death
penalty. Having found no prejudicial error, we see no grounds for reversal.
DISPOSITION
The judgment of the superior court is affirmed.
100
CONCURRING AND DISSENTING OPINION BY WERDEGAR, J.
While I concur in the court’s affirmance of defendant’s murder conviction
and the special circumstance findings, I dissent from the court’s affirmance of the
death penalty in this case. In my view, the trial court’s error in failing to provide
defendant an attorney to argue for his life requires reversal of the judgment as to
penalty. This being so, I do not address any claim of ineffective assistance of
counsel.
As the majority acknowledges, the course of this penalty trial was highly
unusual and troubling. Defense counsel, having rested without making an opening
statement, presenting any evidence, or cross-examining any witnesses, announced
their intent to submit the case without any argument as well. Counsel then refused
not only to give a reason for this decision, but even to indicate in a general way
what type of reason (e.g., strategic, ethical, client direction) they had. Nor would
counsel say why no reason could be given. Essentially, counsel stonewalled the
court. The court asked defendant whether he wanted a different attorney
appointed to argue for him; defendant replied that he did. The court nonetheless
failed to appoint a new attorney. Rather, on the assurance of another attorney that
appointed counsel had some still undisclosed reason not to argue for their client’s
life, the court ultimately accepted counsel’s waiver of argument.
Argument to the jury is, of course, a critical stage of trial, at which
assistance of counsel is vital. (See Herring v. New York (1975) 422 U.S. 853, 858
1
[“There can be no doubt that closing argument for the defense is a basic element
of the adversary factfinding process in a criminal trial”]; People v. Rodrigues
(1994) 8 Cal.4th 1060, 1184 [“It is firmly established that a criminal defendant has
a constitutional right to have counsel present closing argument to the trier of
fact”].) Although defendant personally waived the presentation of mitigating
evidence on his behalf, he did not waive—indeed, he expressly requested—the
presentation of an argument to the jury. The trial court’s unwarranted refusal in
the face of that request to appoint an attorney who would argue for defendant at
penalty phase deprived him of a fundamental right guaranteed by the Sixth
Amendment to the United States Constitution. The error, moreover, was
prejudicial: defendant’s complete lack of representation at this critical phase of
trial renders the penalty verdict constitutionally unreliable and requires its
reversal. (United States v. Cronic (1984) 466 U.S. 648, 659.)
California precedents make clear a trial court may not thus abdicate its duty
to ensure a criminal defendant the assistance of counsel. In People v. McKenzie
(1983) 34 Cal.3d 616, limited on another ground in People v. Crayton (2002) 28
Cal.4th 346, 364-365, defense counsel refused to participate in the trial because of
the court’s adverse pretrial rulings, including denial of a continuance to prepare a
defense. Acknowledging that counsel’s difficulties were created by defendant’s
refusal to cooperate, the trial court ruled that defendant had waived his
constitutional rights, and thus allowed the trial to proceed without counsel’s
participation. Because the defendant had been removed from the courtroom at the
outset of trial due to disruptive behavior, his views concerning counsel’s
nonparticipation or the substitution of counsel were never expressed. (McKenzie,
supra, at pp. 624-625.) McKenzie thus was a weaker case on appeal than the
present one, where defendant expressly requested new counsel. We nonetheless
held that appointment of substitute counsel would have been a proper trial court
2
response (id. at pp. 629-630) and that the court erred by instead “allowing this
defendant to proceed to trial without the assistance of counsel” (id. at p. 627).
The Court of Appeal reached the same conclusion in People v. Shelley
(1984) 156 Cal.App.3d 521. There, the defense attorney, dissatisfied with certain
trial court rulings, announced during trial that he would continue to be present but
would no longer participate in any way. (Id. at pp. 524-525.) Although the
prosecutor suggested counsel was trying to create “a ground for appeal,” counsel
later stated he was only trying “to show the court the depth of my conviction” that
its rulings were wrong. (Id. at pp. 525, 529.) The court allowed the trial to
proceed to a jury verdict without counsel’s participation. (Id. at p. 527.)
Whatever the reason for counsel’s choice, the Court of Appeal held, the
trial court should not have acceded to counsel’s inaction on the ground that it was
or could be described as a “tactic.” If defense counsel absolutely refuses to
participate in the trial, the court “must appoint substitute counsel.” (People v.
Shelley, supra, 156 Cal.App.3d at p. 531.) The court’s failure to do so “breached
its duty to safeguard appellant’s right to the effective assistance of counsel and to
ensure the orderly administration of justice.” (Id. at p. 532.) Shelley, like
McKenzie, was a weaker case than this one, because the defendant there said he
agreed with counsel’s nonparticipation (Shelley, supra, at p. 527), whereas here, of
course, defendant instead asked for another lawyer to be appointed to do what his
current lawyers refused to do.
The majority suggests defendant may, contrary to his express and
unambiguous statement on the record, have harbored a desire to dispense with
argument, a desire the majority speculates appointed counsel inferred from
defendant’s behavior at his first trial (eight years earlier, in 1982) and his asserted
lack of cooperation in investigating his family background. While anything is
possible, nothing in the record of the present trial—and more important, nothing
3
before the trial court when it accepted counsel’s waiver of argument—supports
such an assumption.
The possibility defendant wished to waive argument certainly occurred to
the court, which directly asked lead counsel if that were the case:
“The Court: . . . Mr. Miller, is this pursuant to the wishes of the defendant?
“Mr. Miller: Your Honor, I’m in no position to answer the court’s
question.”
Having received this unhelpful response, the trial court turned to defendant:
“The Court: . . . I want you to be aware, if you want someone to argue in
your behalf, I will gladly appoint another lawyer and to have him review this case
for purposes of arguments. . . . There are so many aspects to factors in mitigation
as to your case. You understand this Mr. Snow?
“The Defendant: Yes.
“The Court: Do you wish the court to appoint another lawyer in your
behalf?
“The Defendant: Yes.
“The Court: Thank you. This will be for the purposes of the arguments in
this case. Do you understand this?
“The Defendant: (Defendant nods head in the affirmative.)”1 (Italics
added.)
With the question of defendant’s wishes thus resolved, the court prepared to
obtain new counsel, asking its clerk to contact an attorney, Mort Borenstein,
1
The trial court may have gone beyond its duties in inquiring of defendant
whether he wanted new counsel to argue for him. That does not affect the court’s
duty, once it learned defendant in fact did wish to have counsel argue, to appoint
such counsel.
4
known to the court as resourceful and competent. The court’s subsequent
colloquy with attorney Robert Gerstein (who appeared to argue for retention of
appointed counsel Miller and Maple) shed no additional light on defendant’s
wishes, as Gerstein expressly stated he had no information to provide on that
subject:
“Mr. Gerstein: I’ve—I understand—what I do want to say, your Honor, is
that they are representing the client’s best interests in their professional judgment.
Now, I did not mean to—
“The Court: That’s all I want to hear.
“Mr. Gerstein: —I did not mean to say by that that this was not the
defendant’s judgment or that it was the defendant’s judgment, that that was not
taken into account.” (Italics added.)
Thus the court, attempting to determine whether defendant wanted an
attorney to argue for him at the penalty trial, first heard appointed counsel Miller
refuse to answer the question, then heard defendant answer that he did want an
attorney to argue for him, and finally heard Miller and Maple’s attorney, Gerstein,
say that he did not mean to say anything on the subject. The court, I submit, could
not rationally conclude from this information that defendant wished to waive
representation at the argument phase or to waive argument itself.2
2
The majority’s reliance on People v. Lang (1989) 49 Cal.3d 991, 1029-
1033 (maj. opn., ante, at p. 89) is thus misplaced. Lang involved the defense’s
decision to forgo a particular piece of mitigating evidence, not to waive argument
to the jury. The claim was ineffective assistance of counsel, not trial court error in
failing to appoint counsel. Most important, in Lang, the defendant’s desire not to
have the evidence presented appeared in the record (Lang, supra, at p. 1029); here,
in contrast, defendant specifically and expressly stated that he did want argument
presented on his behalf. The last fact crucially distinguishes Lang and similar
decisions, which simply recognize that counsel has no obligation to pursue penalty
phase strategies contrary to the expressed wishes of the client. (See, e.g., People
(footnote continued on next page)
5
Indeed, the trial court’s own comments, at the conclusion of the Gerstein
discussion, show its decision to accept counsel’s waiver rested not on an intuition
or inference regarding defendant’s wishes but on its acceptance of what the court
took to be Gerstein’s assurance that appointed counsel had a tactical reason for
their course of action, an assurance Gerstein never gave and that counsel
steadfastly refused to give.
The court had earlier attempted to elicit from appointed counsel a statement
that they had a tactical or strategic reason to waive argument. That attempt failed,
as counsel simply refused to say anything about their reasons:
“The Court: . . . Does counsel for the defense wish to respond to the
court’s inquiry?
“Mr. Maple: I do not, your Honor.
“The Court: Mr. Miller?
“Mr. Miller: No, Sir. [¶] . . . [¶]
“The Court: . . . Not one word is being argued in his behalf as to the
penalty aspect of this trial before this jury. May I know why, counsel? Mr.
Miller, have you any reply?
“Mr. Miller: No, sir. No, your Honor.
“The Court: Mr. Maple?
“Mr. Maple: No, your Honor. [¶] . . . [¶]
“The Court: Thank you. Is this pursuant to tactical reasons that you may
have developed in the course of this trial?
(footnote continued from previous page)
v. Howard (1992) 1 Cal.4th 1132, 1183-1186; People v. Deere (1991) 53 Cal.3d
705, 713-717.)
6
“Mr. Miller: I cannot answer the court’s question.”3
After the discussion with Gerstein, however, the court noted that Gerstein
had, in the court’s view, answered the question appointed counsel would not
answer:
“The Court: Now, with your statement, it appears that it’s solely tactical,
and the presumption is that evidence to the contrary, the appellate court will take
that presumption.
“Mr. Gerstein: Well, your Honor, perhaps I have gone too far in saying
that.
“The Court: Well, you made the statement and I’ve accepted it.” (Italics
added.)
The court then said it would accept the waiver and submit the case to the
jury without defense argument.
Although the trial court correctly sought to determine, before appointing
new counsel, whether current counsel had a valid tactical reason for waiving
argument over the objection of their client, the court erred in finding, on the
information before it, that counsel did have such a reason. The appointed
attorneys refused to say whether they had such a reason. Attorney Gerstein stated
that Miller and Maple believed they were acting in their client’s best interest, but
expressly disavowed any representation that their reasons were tactical:
3
According to the majority, Miller and Maple “believed that confidentiality
or attorney-client privilege precluded them from informing the court of their
reasons for electing their chosen course of action at the penalty trial.” (Maj. opn.,
ante, at p. 86.) As to counsel’s decision to waive argument, this statement is
without support in the record. Counsel steadfastly refused to give the trial court
any indication of their reasons for that intended waiver, including any indication
of why they could not or would not give their reasons.
7
“Mr. Gerstein: . . . I have no intention of saying . . . that it was a tactical
decision as opposed to any other sort of decision.” (Italics added.)
Nor do the circumstances known to the trial court at the time of its decision
to accept counsel’s waiver of argument indicate the presence of a legitimate
tactical or strategic reason for the waiver. Leaving one’s client defenseless,
without any evidence or argument on his behalf, at a capital sentencing hearing,
when the facts of the crime and the prosecution’s evidence of aggravating
circumstances give the jury ample reason to find death the appropriate
punishment, is neither a generally recognized nor an acceptable strategy for capital
representation. (See Kubat v. Thieret (7th Cir. 1989) 867 F.2d 351, 368
[presentation of a “grossly substandard argument” at a capital sentencing hearing,
after failing to present evidence in mitigation, was not a “competent strategic
decision”]; Smith v. Stewart (9th Cir. 1998) 140 F.3d 1263, 1268-1269 [capital
counsel who presented no mitigating evidence and, in argument, made only “a few
asthenic comments to the effect that Smith still denied his guilt and that he was
just 30 years of age” had no tactical reason]; Clabourne v. Lewis (9th Cir. 1995)
64 F.3d 1373, 1387 [making of perfunctory penalty argument, after presenting no
mitigating evidence, “ ‘amount[ed] in every respect to no representation at
all’ ”].)4
4
Bell v. Cone (2002) 535 U.S. 685 [122 S.Ct. 1843], cited by the majority
(maj. opn., ante, at p. 84), is readily distinguishable. The defense there had put on
considerable mitigating evidence in an earlier stage of trial. At the penalty trial
(held the day after the jury returned its guilt verdicts), defense counsel made an
opening statement in which he called the jury’s attention to the mitigating
evidence already before them and argued the defendant was remorseful and the
jury should exercise mercy and spare his life. (535 U.S. at p. ___ [122 S.Ct. at
p. 1848].) After both sides rested, the junior prosecutor gave a “ ‘low key’ ”
closing argument; the defense then waived closing argument, “preventing the lead
prosecutor, who by all accounts was an extremely effective advocate, from
(footnote continued on next page)
8
The Attorney General suggests counsel were pursuing a “strategy” of
failing to perform on defendant’s behalf so as to “preserve an inadequacy of
counsel issue for appeal.” As Miller and Maple refused to give a reason for their
decision not to argue on defendant’s behalf, any assignment of reasons to them
would be speculative. But even assuming the trial court made the same guess as
the Attorney General now makes, the court nonetheless erred, as such a plan on
counsel’s part could not be characterized as a competent strategy. Miller and
Maple were defendant’s trial attorneys. Their job was to defend him zealously
and with all their skill against the People’s criminal charges. While a trial attorney
should seek to preserve potential appellate issues as they arise, he or she must not
abandon the effort to provide a competent trial defense in the hope of creating a
claim for appeal. (See Rules Prof. Conduct, rule 3-110(A) [attorney “shall not
intentionally . . . fail to perform legal services with competence”].)
Abandoning the effort to conduct a defense at trial is not a competent
tactical choice, whatever the reason. Even if counsel believed, for example, that
the court’s earlier rulings had made the penalty trial unfair, they could not
competently abandon their client in the hope of securing a reversal on appeal.
Once assigned to represent a criminal defendant, an attorney “is bound to do so to
the best of his abilities under the circumstances,” even in the face of adverse
(footnote continued from previous page)
arguing in rebuttal.” (Ibid.) In the present case, in contrast, the defense
introduced no mitigating evidence at the guilt or penalty phase. The penalty trial
took place more than a month after the guilt verdicts were returned, and the
defense gave no opening statement. Moreover, before penalty argument began,
the trial court ruled that the People would have no opportunity to rebut, and both
prosecutors consequently gave their closing arguments before the defense was
called on to argue. The factors that arguably justified a tactical waiver of final
argument in Bell v. Cone were entirely absent here.
9
rulings counsel believes are incorrect. (People v. McKenzie, supra, 34 Cal.3d at
p. 631.) “A refusal to participate in formulating or conducting a defense is not
generally among the available strategic options.” (Ibid.)
The trial court’s first instinct was correct: faced with appointed defense
attorneys who refused, without any explanation and against defendant’s expressed
wishes, to perform as advocates for the life of their client, the court should have
relieved them and appointed a new attorney. (See Code Civ. Proc., § 284, subd. 2
[attorney in action “may be changed” at any time “upon the application of [the]
client”]; Smith v. Superior Court (1968) 68 Cal.2d 547, 558 [quoted statute applies
in criminal cases].) On the defendant’s motion, substitution of attorneys is
compelled when there is “ ‘a sufficient showing that the defendant’s right to the
assistance of counsel would be substantially impaired if his request was denied.’ ”
(People v. Clark (1992) 3 Cal.4th 41, 104; People v. Stankewitz (1990) 51 Cal.3d
72, 87-88.) That a capital defendant’s right to counsel is substantially impaired
through continued representation by attorneys who, against the defendant’s wishes
and for no apparent tactical or strategic reason, refuse to argue for the defendant’s
life, is, I believe, too clear to require further discussion.
As nothing before the trial court reasonably indicated either defendant’s
concurrence in counsel’s waiver or a legitimate reason (ethical, strategic, or
tactical)—indeed, everything before the court refuted both—the court erred in
accepting the waiver and sending the case to the jury without any attorney to argue
for the defense. The court’s error resulted in the complete absence of an
attorney’s assistance to defendant at a critical stage of trial, a clear deprivation of
his Sixth Amendment right to counsel. The error was prejudicial, for the court’s
erroneous acceptance of counsel’s waiver of argument, following as it did their
decision not to make any opening statement, present any mitigating evidence, or
cross-examine any of the People’s witnesses, resulted in what may be described
10
either as a “complete denial of counsel” (United States v. Cronic, supra, 466 U.S.
at p. 659) at the critical stage of jury argument or as a complete failure of the
defense to subject the prosecution’s penalty phase case “to meaningful adversarial
testing” (ibid.). Either way, “there has been a denial of Sixth Amendment rights
that makes the adversary process itself presumptively unreliable.” (Ibid.)5
Acknowledging that a bona fide argument for sparing the defendant’s life
may virtually always be made at the penalty phase, the majority nonetheless
suggests that here Miller and Maple had nothing to argue because no mitigating
evidence had been introduced. To the contrary, I believe the concept of residual or
lingering doubt—which does not depend on introduction of mitigating evidence—
would have provided the basis for an appropriate and possibly effective penalty
argument in this case.6 The case in aggravation rested primarily on the facts of the
murder for which defendant was convicted. The evidence upon which the jury
convicted, while legally sufficient, was entirely circumstantial and was far from
absolutely conclusive; it consisted mainly of proof of motive and opportunity,
together with a single fingerprint on a visor found elsewhere in Pasadena on the
day of the killing, the unexplained presence of the victim’s telephone number in
5
Contrary to the majority’s suggestion (maj. opn., ante, at p. 91), I refer to
the fact no mitigating evidence was introduced not to demonstrate ineffective
assistance of counsel, but only to explain how the court’s later decision to submit
the case to the jury without any attorney having argued for defendant resulted in a
complete failure of adversarial testing at the penalty phase.
6
The majority minimizes this potential argument with the remark that “then
again, Miller had taken that tack at the second penalty phase of defendant’s first
trial,” where it was unsuccessful. (Maj. opn., ante, at p. 82.) Insofar as the
majority implies that Miller could, as a competent strategy, have decided to do
nothing rather than make a legitimate argument that had failed to persuade a
different jury, which had heard evidence in a different trial, I fail to see the
majority’s logic.
11
defendant’s notebook, and a prosecutor’s testimony—contradicted by credible
defense evidence—that defendant had reacted without emotion when told of the
victim’s death. That the jurors would have been unanimously willing to send a
man to his death on such evidence, had counsel reminded them of the weaknesses
in the prosecution case and argued vigorously for the appropriateness of a life
sentence, was not a foregone conclusion.
The majority places great emphasis on declarations filed under seal with
another department of the superior court, in which trial counsel revealed some of
the events and discussions that purportedly underlay their decision not to present
mitigating evidence at the penalty phase. For two simple reasons, however, those
declarations are irrelevant to analysis of defendant’s principal claim, which is that
the court erred in not appointing an attorney to argue for him to the jury. First, the
declarations relate to the investigation and presentation of mitigating evidence, not
to the making of an argument to the jury. Second, and more important, the
declarations were not before the trial court at the time it decided to submit the
case to the jury without defense argument. They could not possibly have
influenced the court and cannot logically be used to justify the court’s decision.
(See 6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Appeal,
§ 142, p. 390; 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 328, pp. 369-370
[matters not in record and not before trial court are not properly considered on
appeal of judgment or order].)
For similar reasons, I disagree with the majority’s view that consideration
of defendant’s principal claim—that the trial court erred in refusing to appoint new
counsel for argument—is properly deferred until possibly raised in a future
petition for writ of habeas corpus. The merits of defendant’s claim, as of any
claim of trial court error, must be measured by the information available to the
trial court when it made the challenged decision. Posttrial declarations of counsel
12
attempting to justify their waiver of argument may affect the analysis of an
ineffective assistance of counsel claim, but can shed no light on the merits of a
claim that the trial court erred, during trial, in denying defendant an attorney to
argue for him at the penalty phase of trial. The issue in this appeal is not whether
this court can imagine a satisfactory explanation for counsel’s behavior, or
whether one may be put forward in habeas corpus proceedings. The issue is,
rather, whether the trial court was given, or could have inferred from information
before it, a satisfactory explanation. On this question the appellate record is
complete, and habeas corpus proceedings promise no greater insights.
I would hold simply that in the penalty phase of a capital case, when the
defense has made no opening statement, called no witnesses, cross-examined none
of the prosecution witnesses, presented no evidence in mitigation, and proposes to
make no closing argument, the trial court should not accept counsel’s waiver of
13
penalty phase argument where that waiver is contrary to the defendant’s expressed
wishes and is unaccompanied by any explanation from counsel. The majority’s
contrary holding—that the court may accept counsel’s waiver without any
explanation and contrary to defendant’s expressed wishes—seems to suggest that
trial courts may turn a blind eye to an apparent abandonment of the client by
appointed counsel in even the most serious of criminal cases. The possibility that
attorneys Miller and Maple will, in a habeas corpus proceeding years from now,
come up with a post hoc explanation for their actions—an explanation they would
not provide the trial court even in chambers and without the prosecutor present,
and which consequently would be of doubtful reliability—does not justify a
holding that so undermines the appearance of justice in capital cases.
WERDEGAR, J.
WE CONCUR:
GEORGE, C. J.
MORENO, J.
14
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Snow
__________________________________________________________________________________
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S018033
Date Filed: April 3, 2003
__________________________________________________________________________________
Court: Superior
County: Los Angeles
Judge: Jack B. Tso
__________________________________________________________________________________
Attorneys for Appellant:
Rodger Paul Curnow and Debi A. Ramos, under appointments by the Supreme Court, for Defendant and
Appellant.
__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C.
Hamanaka, Assistant Attorney General, John R. Gorey and Ellen Birnbaum Kehr, Deputy Attorneys
General, for Plaintiff and Respondent.
1
Counsel who argued in Supreme Court (not intended for publication with opinion):
Rodger Paul Curnow
2625 Alcatraz Avenue, No. 601
Berkeley, CA 94705-2702
(510) 428-2494
Ellen Birnbaum Kehr
Deputy Attorney General
300 South Spring Street
Los Angeles, CA 90013
(213) 897-2270
2
Opinion Information
| Date: | Docket Number: |
| Thu, 04/03/2003 | S018033 |
Parties
| 1 | The People (Respondent) Represented by Attorney General - Los Angeles Office Ellen Birnbaum Kehr, Deputy Attorney General 300 South Spring Street, 5th Floor Los Angeles, CA |
| 2 | Snow, Prentice Juan (Appellant) Represented by Habeas Corpus Resource Center Michael Laurence, Executive Director 303 Second Street, Suite 400 South San Francisco, CA |
| Disposition | |
| Apr 3 2003 | Opinion: Affirmed |
| Dockets | |
| Sep 25 1990 | Judgment of death |
| Oct 24 1990 | Filed certified copy of Judgment of Death Rendered 9-25-90. |
| Oct 15 1993 | Motion filed By Atty Keith E. Jagmin for Admission to Bar Pro Hac Vice. |
| Oct 18 1993 | Counsel appointment order filed The Motion for Admission to Bar Pro Hac Vice, filed 10-15-93, is granted. Keith E. Jagmin is hereby granted admission to appear Pro Hac Vice, and is hereby appointed as counsel to represent appellant on his automatic appeal now pending in this court, including any related habeas proceedings. (See Cal. Rules of Court, Rule 983.) Debbie Ramos, Esq., is hereby appointed as associate counsel. |
| Jan 26 1994 | Filed: Applt's request for Relief from Default (to request correction of the Record.) |
| Jan 26 1994 | Application for Extension of Time filed By Applt to request correction of Record. |
| Jan 28 1994 | Order filed: The request of appellant for relief from default for failure to timely file a request for extension of time to request correction of the record, is granted. On application of appellant and good cause appearing, it is ordered that appellant is granted to and including 4-11-94, to request correction of the record on appeal. Counsel for appellant is further ordered to notify the Clerk of the Supreme Court in writing as soon as the act as to which the Court has granted an extension of time has been completed. |
| Feb 9 1994 | Compensation awarded counsel |
| Apr 11 1994 | Application for Extension of Time filed By Applt to request correction of Record. |
| Apr 13 1994 | Extension of Time application Granted To Applt To 6-10-94 To request Corr. of Record. |
| Jun 8 1994 | Application for Extension of Time filed By Applt to request correction of Record. |
| Jun 14 1994 | Extension of Time application Granted To Applt To 8-9-94 To request Corr. of Record. |
| Aug 8 1994 | Application for Extension of Time filed By Applt to request correction of Record. |
| Aug 9 1994 | Extension of Time application Granted To Applt To 8-29-94 To request Corr. of Record. |
| Aug 29 1994 | Application for Extension of Time filed By Applt to request correction of Record. |
| Aug 31 1994 | Extension of Time application Granted To Applt To 9-8-94 To request Corr. of Record. |
| Jan 30 1995 | Change of Address filed for: Atty Debi A. Ramos. |
| Jan 30 1995 | Motion filed By Applt for Relief from Default & for Ext. of time to request correction of Record. |
| Feb 9 1995 | Filed: Declaration of Debi A. Ramos in support of motion for Relief from Default & for Ext. of Time. |
| Feb 10 1995 | Extension of Time application Granted To Applt To 3-27-95 To request Corr. of Record. |
| Mar 28 1995 | Application for Extension of Time filed By Applt to request correction of Record. |
| Mar 29 1995 | Extension of Time application Granted To Applt To 5-25-95 To request Corr. of Record. |
| Mar 29 1995 | Confidential order filed |
| Mar 29 1995 | Order filed The order filed on Oct. 18, 1993, in the above-entitled case is hereby vacated insofar as it appoints pro hac vice Keith E. Jagmin of the State of Texas as lead attorney for appellant Prentice Juan Snow. (See California Rules of Court, rule 983(d).) Pending further order of the court, Debi Ramos is hereby designated as lead attorney for appellant Prentice Juan Snow. Keith E. Jagmin is ordered forthwith to transmit all case files, transcripts and any other case-related materials to Debi Ramos. |
| Mar 30 1995 | Compensation awarded counsel |
| May 24 1995 | Application for Extension of Time filed By Applt to request correction of Record. |
| May 26 1995 | Extension of Time application Granted To Applt To 7-24-95 To request Corr. of Record. |
| Jul 20 1995 | Change of Address filed for: For Atty Debi Ramos. |
| Jul 20 1995 | Application for Extension of Time filed By Applt to request correction of Record. |
| Jul 21 1995 | Extension of Time application Granted To Applt To 9-22-95 To request Corr. of Record. |
| Oct 3 1995 | Motion filed Appellant's motion for Extension of time and Relief from Default to request Record correction |
| Oct 3 1995 | Filed: Declaration of Debi A. Ramos in support of Applt's motion for Extension of time and Relief from Default. |
| Oct 5 1995 | Extension of Time application Granted To Applt To 11-20-95 To request Corr. of Record. |
| Nov 21 1995 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Nov 22 1995 | Extension of Time application Granted To Applt To 1-19-96 To request Corr. of Record. |
| Jan 22 1996 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Jan 23 1996 | Extension of Time application Granted To Applt To 3-19-96 To request Corr. of Record. |
| Feb 5 1996 | Order filed: The order filed on 3-29-95, in the above-entitled case is hereby vacated insofar as it designates associate counsel Debi Ramos, Esq., as lead attorney for appellant Snow pending further order of the court. On the court's own motion, Rodger P. Curnow, Esq., is hereby appointed as lead counsel to represent appellant on his automatic appeal now pending in this court, including any related habeas proceedings. Debi Ramos, Esq., shall remain as appointed associate counsel. |
| Apr 4 1996 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Apr 5 1996 | Extension of Time application Granted To Applt To 5-20-96 To request Corr. of Record. |
| May 21 1996 | Application for Extension of Time filed By Applt to request correction of the Record. |
| May 29 1996 | Extension of Time application Granted To Applt To 7-19-96 To request Corr. of Record. |
| Jul 24 1996 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Jul 26 1996 | Extension of Time application Granted To Applt To 9-17-96 To request Corr. of Record. |
| Sep 19 1996 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Sep 19 1996 | Extension of Time application Granted To Applt To 11-18-96 To request Corr. of Record. no further Extensions of time Are Contemplated. |
| Nov 18 1996 | Received: Applt's motion for Eot to request Record Corr. |
| Nov 19 1996 | Application for Extension of Time filed By Applt to request correction & Augmentation of Record. |
| Nov 21 1996 | Extension of Time application Granted To Applt To 1-17-97 To request Corr. of Record. no further Extensions of time will be Granted. |
| Jan 22 1997 | Received: Copy of Applt's request to correct, Augment, Settle Record, & to Examine Sealed Transcripts (16 Pp.) |
| Feb 25 1997 | Compensation awarded counsel |
| Dec 12 1997 | Filed: Applt's Applic. to Augment Record with C.T. and R.T. of the First Trial. |
| Dec 26 1997 | Opposition filed Opposition to Augment the Record |
| Jan 14 1998 | Record augmentation denied Appellant's application to augment the record on appeal with transcripts of appellant's prior trial on these charges is denied. Denial is without prejudice to a motion for judicial notice of those parts of the record of the prior trial relevant to the issues on appeal, which motion may be filed after certification of the record |
| Apr 14 1999 | Record on appeal filed C-21 (4,818 Pp.) and R-59 (5,561 Pp.) (Including Sealed Material). |
| Apr 14 1999 | Appellant's opening brief letter sent, due: 5-24-99. |
| Apr 26 1999 | Habeas funds request filed (confidential) |
| May 24 1999 | Application for Extension of Time filed To file Aob. |
| May 27 1999 | Extension of Time application Granted To 7-23-99 To file AOB |
| Jun 30 1999 | Order filed re Habeas Funds Request |
| Jul 23 1999 | Application for Extension of Time filed To file Aob. |
| Jul 28 1999 | Extension of Time application Granted To 9-21-99 To file AOB |
| Sep 21 1999 | Application for Extension of Time filed To file Aob. |
| Sep 22 1999 | Extension of Time application Granted To 11/22/99 To file Aob. |
| Nov 23 1999 | Application for Extension of Time filed To file Aob. |
| Nov 30 1999 | Extension of Time application Granted To 1/21/2000 To file Aob. |
| Jan 25 2000 | Application for Extension of Time filed To file Aob. |
| Jan 26 2000 | Extension of Time application Granted To 3/21/2000 To file Aob. |
| Mar 21 2000 | Application for Extension of Time filed To file Aob. |
| Mar 24 2000 | Extension of Time application Granted To 5/22/2000 To file Aob. |
| May 25 2000 | Application for Extension of Time filed To file Aob. |
| Jun 1 2000 | Extension of Time application Granted To 7/21/2000 To file Aob. |
| Jul 24 2000 | Application for Extension of Time filed To file AOB. (8th request) |
| Aug 3 2000 | Extension of Time application Granted to 10-23-2000 to file AOB. |
| Oct 25 2000 | Application for Extension of Time filed To file AOB. (9th request) |
| Oct 31 2000 | Extension of Time application Granted To 12/20/2000 to file AOB. No further ext. of time are contemplated. |
| Dec 20 2000 | Order filed: The application of applt for leave to file AOB in excess of 280 pages is granted. |
| Dec 21 2000 | Filed: applt's applic. for leave to file AOB in excess of 280 pages. (294 pp.-AOB submitted under separate cover; sent per Rule 40(n)) |
| Dec 21 2000 | Appellant's opening brief filed (294 pages) |
| Jan 22 2001 | Application for Extension of Time filed to file resp's brief. |
| Jan 29 2001 | Extension of Time application Granted To 3/23/2001 to file resp's brief. |
| Feb 14 2001 | Compensation awarded counsel Atty Curnow |
| Feb 15 2001 | Counsel's status report received (confidential) |
| Mar 2 2001 | Motion filed Resp's motion pursuant to rule 33.5 (b) - provide resp with a copy of sealed transcripts. |
| Mar 15 2001 | Filed: Applt.'s Response to motion purs. to rule 33.5(b) - to provide Resp. with copy of sealed transcript. |
| Mar 20 2001 | Application for Extension of Time filed to file resp's brief. (2nd request) |
| Mar 21 2001 | Filed: Sealed reporter's transcript pages 5234 - 5251 from LA Superior Court |
| Mar 23 2001 | Extension of Time application Granted To 5/22/2001 to file Resp.'s Brief. |
| Apr 9 2001 | Order filed: Applt's request to examine sealed transcript of proceedings on 7-18-90, is granted. (Cal. Rules of Court, rule 33.5(b).) Applt shall serve and file any opposition to Respondent's request for a copy of the transcript within 10 days after service of this order. (see Cal. Rules of Court, rule 41(a).) |
| Apr 11 2001 | Counsel's status report received (confidential) |
| May 1 2001 | Motion for access to sealed record filed Applt.'s "Application to view sealed transcripts". |
| May 16 2001 | Motion for access to sealed record granted Respondent's "Motion Pursuant to Rule 33.5, Subdivision (B), California Rules of Court to Provide Respondent with a Copy of a Sealed Transcript," filed March 2, 2001, is granted. (Note: transcript of the in camera hearing of 7-18-90 (pp. 5234-5251 of R.T.) |
| May 17 2001 | Application for Extension of Time filed to file resp's brief. (3rd request) |
| May 22 2001 | Extension of Time application Granted To 7/23/2001 to file respondent's brief. |
| Jun 1 2001 | Motion for access to sealed record granted The application of appellant to view sealed records, filed 5-1-2001, is granted. The clerk is directed to send a copy of the following sealed record to counsel for appellant: Reporter's transcript pp. 976-981 of in camera hearing conducted on 4-5-90, before Judge Jack B. Tso; Reporter's transcript pp. 976-981 of in camera hearing conducted on 4-6-90, before Judge Jack B. Tso; Reporter's transcript pp. 982-988 of in camera hearing conducted on 4-6-90, before Judge Jack B. Tso; Reporter's transcript pp. 1-6 of in camera hearing conducted on 4-9-90, before Judge George Xanthos; and Reporter's transcript pp. 1791-1800 of in camera hearing conducted on 4-19-90, before Judge Jack B. Tso. The clerk is also directed to send a copy of the following sealed record to counsel for appellant: "Supplemental" clerk's transcript, "Confidential Vol. III," pp. 517-773; "Supplemental" clerk's transcript, "Confidential Vol. IV" pp. 774-1031; "Supplemental" clerk's transcript, "Confidential Vol. V," pp. 1032-1290; "Supplemental Three" clerk's transcript, "Vol. Eight," pp. 2967A-3253; "Supplemental Three" clerk's transcript, Vol. Nine," pp. 3254-3471; Contents of manila envelope labeled "Notice of lodging of transcripts and sealed materials with petition for writ of prohibition" in Snow v. Superior Court, B049604, Second Appellate Dist., Div. Two; Contents of manila envelope labeled "Notice of lodging of additional sealed materials to support of petition for writ of prohibition," in Snow v. Superior Court, B049604, Second App. Dist., Div. Two. |
| Jun 1 2001 | Note: sealed record mailed to applt's counsel this date, pursuant to the court's order. |
| Jun 7 2001 | Counsel's status report received (confidential) |
| Jul 20 2001 | Application for Extension of Time filed to file Respondent's Brief. (4th request) |
| Jul 30 2001 | Extension of Time application Granted To 9/21/2001 to file resp.'s brief. |
| Aug 6 2001 | Counsel's status report received (confidential) |
| Sep 10 2001 | Respondent's brief filed (258 pp.) |
| Sep 10 2001 | Request for Judicial Notice filed attorney for respondent |
| Oct 2 2001 | Counsel's status report received (confidential) |
| Oct 2 2001 | Application for Extension of Time filed To file reply brief. (1st request) |
| Oct 4 2001 | Filed: "Amended request for extension of time within which to file applt.'s reply brief". |
| Oct 10 2001 | Extension of Time application Granted To 11/30/2001 to file reply brief. |
| Dec 3 2001 | Request for extension of time filed To file reply brief. (2nd request) |
| Dec 3 2001 | Counsel's status report received (confidential) |
| Dec 7 2001 | Filed: "Amended declaration of counsel" in support of application for extension of time to file reply brief. |
| Dec 12 2001 | Extension of time granted To 1/29/2002 to file reply brief. Attorney Curnow anticipates filing the brief by 3/30/2002. Only one further extension totaling 60 additional days is contemplated. |
| Dec 26 2001 | Counsel's status report received (confidential) |
| Jan 28 2002 | Request for extension of time filed To file reply brief. (3rd request) |
| Jan 31 2002 | Extension of time granted To 4/2/2002 to file reply brief. Counsel anticipates filing the brief by 3/30/2002. After that date, no further extension is contemplated. |
| Feb 5 2002 | Counsel's status report received (confidential) |
| Mar 19 2002 | Change of Address filed for: Applt. counsel Rodger Paul Curnow. |
| Apr 2 2002 | Received: Overlength reply brief. (170 pp.) Atty. Rodger Curnow to submitt application to file overlength brief. |
| Apr 8 2002 | Application to file over-length brief filed to file reply brief. |
| Apr 12 2002 | Filed: Applt.'s application to file reply brief in excess of 140 pp. is granted. |
| Apr 12 2002 | Appellant's reply brief filed (170 pp.) |
| Apr 23 2002 | Counsel's status report received (confidential) |
| May 30 2002 | Application filed to: To file supplemental appellant's opening brief. |
| May 31 2002 | Order filed Appellant's application to file a supplemental brief is granted. Appellant shall file the brief within 30 days of the date of this order. Respondent may file a supplemental answer brief within 30 days of the filing of appellant's brief. No reply brief may be filed, and no extensions of these periods will be granted. |
| Jun 6 2002 | Counsel's status report received (confidential) |
| Jun 18 2002 | Supplemental brief filed Appellant's supplemental opening brief. (15 pp. - excluding appendix) |
| Jul 17 2002 | Supplemental brief filed by respondent (17 pp.) |
| Jul 30 2002 | Application filed to: File supplemental applt.'s reply brief. |
| Aug 5 2002 | Order filed Appellant's application to file supplemental appellant's reply brief is granted. Appellant shall file a supplemental brief not to exceed five pages within 20 days of the date of this order. No extension of this period will be granted. |
| Aug 6 2002 | Counsel's status report received (confidential) |
| Aug 14 2002 | Exhibits lodged one small box containing: People's. #6, helmet shield in a bag Defendant's DDD, [1] radio log [26 pgs long.] Defendant's EEE [1] audio cassette tape |
| Sep 4 2002 | Supplemental reply brief filed (AA) by appellant (5 pp.) |
| Sep 24 2002 | Oral argument letter sent advising counsel case could be scheduled for oral argument as early as the December 2002 calendar to be held in Los Angeles the week of Dec. 2, 2002. Any request for additional time to argue, notification of requirement for two counsel, or advisement of "focus issues" shall be made no later than 10 days after the case has been set for oral argument. |
| Oct 1 2002 | Counsel's status report received (confidential) |
| Nov 27 2002 | Case ordered on calendar 1-8-03, 9am, S.F. |
| Dec 4 2002 | Filed letter from: Appellant, dated 11/29/2002, re focus issues for oral argument and requesting 45 minutes for argument. |
| Dec 4 2002 | Counsel's status report received (confidential) |
| Dec 6 2002 | Order filed The request of appellant for 45 minutes for oral argument is granted. |
| Dec 6 2002 | Filed letter from: respondent, dated 12/05/2002, re: focus issues and requesting 45 mins. for oral argument. |
| Dec 9 2002 | Order filed The request of respondent for 45 minutes for oral argument is granted. |
| Dec 17 2002 | Received letter from: Appellant, dated 12/13/2002, re additional authorities for oral argument. |
| Dec 20 2002 | Filed letter from: Respondent, dated 12/20/2002, re errata to respondent's brief. |
| Jan 8 2003 | Cause argued and submitted |
| Feb 4 2003 | Counsel's status report received (confidential) |
| Feb 19 2003 | Letter sent to: counsel: The court, on its own motion, is considering ordering the following confidential portions of the record on appeal unsealed: The R.T. of an in camera hearing held 4-19-90 (R.T. 1791-1800); the R.T. of an in camera hearing held 7-18-90 (R.T. 5234-5251); and declarations filed with the master calendar judge of the superior court (C.T. Supp. 3, vol. 9, pp. 3365-3376). Please serve and file any opposition to this proposed action within 10 days of the mailing of this notice. (Cal. Rules of Court, rule 12.5(f)(2).) The court is further considering taking judicial notice, on its own motion, of the following pages of the original reporter's transcript of defendant's first trial on these charges in People v. Snow, Crim. 22774 (S004462), L.os Angeles Co. Superior Ct. No. A560682: pages 2924, 2926-2929, 2941-2942, and 2948. The parties should serve and file, within 10 days of the mailing of this notice, any information they desire to present to the court relevant to (1) the propriety of taking judicial notice of the matter, and (2) the tenor of the matter to be noticed. (Evidence Code, sections 455, subd. (a), 459, subd. (c).) |
| Feb 19 2003 | Motion to withdraw as counsel filed Motion by attorneys Rodger Curnow and Debi Ramos to withdraw as appellant's habeas corpus counsel. |
| Feb 26 2003 | Filed: letter from respondent, dated 2-26-2003, in response to court's letter of 2-19-2003. |
| Mar 3 2003 | Filed letter from: appellant, dated 2/27/2003, in response to the court's letter of 2/19/2003. |
| Apr 3 2003 | Opinion filed: Judgment affirmed in full Opinion issued by The Court. Concurring and Dissenting Opinion by Werdegar., ----- Joined by George, CJ., and Moreno, J., |
| Apr 8 2003 | Counsel's status report received (confidential) |
| Apr 16 2003 | Withdrawal of counsel allowed by order Good cause appearing, the application of appointed lead and associate counsel for permission to withdraw as habeas corpus/executive clemency attorneys of record for appellant Prentice Juan Snow, filed February 19, 2003, is granted. The order appointing Rodger Paul Curnow as lead appellate/habeas corpus counsel of record for appellant Prentice Juan Snow, filed February 5, 1996, is hereby vacated with respect to the capital-related habeas corpus/executive clemency proceedings, and the order designating appointed counsel Debi A. Ramos as associate appellate/habeas corpus counsel of record for appellant Prentice Juan Snow, filed February 5, 1996, is hereby vacated with respect to the capital-related habeas corpus/executive clemency proceedings. Mr. Curnow and Ms. Ramos shall remain as lead and associate appellate counsel of record, respectively, for appellant's pending automatic appeal, and each counsel shall continue to be responsible for all appellate duties specified in Supreme Court Policies Regarding Cases Arising From Judgments of Death, policy 3, timeliness standards 1-1 and 2-1. Michael G. Millman, as Executive Director of the California Appellate Project in San Francisco, is hereby appointed to serve as interim habeas corpus/executive clemency counsel of record for appellant Prentice Juan Snow. Rodger Paul Curnow and Debi A. Ramos are directed to deliver to Executive Director Michael G. Millman, within 30 days from the filing of this order, all habeas corpus investigation work product, trial files, investigation reports and related materials that either one of them has obtained from appellant's trial counsel, paralegals, experts and investigators, or from any other source. |
| Apr 21 2003 | Rehearing petition filed by appellant. (27 pp. - per rule 40(k)) |
| Apr 21 2003 | Time extended to consider modification or rehearing to 7/3/2003, or the date upon which rehearing is either granted or denied, whichever occurs first. |
| May 6 2003 | Compensation awarded counsel Atty Curnow |
| Jun 25 2003 | Rehearing denied Petition for rehearing DENIED. George, C.J., Werdegar, J., and Brown, J. are of the opinion the petition for rehearing should be granted. |
| Jun 25 2003 | Remittitur issued (AA) |
| Jun 26 2003 | Exhibits returned to Los Angles County Superior Court, People's 6 and Defendant's DDD, and EEE. |
| Jun 26 2003 | Order filed The order filed on June 25, 2003, is amended to read, it its entirety; "Petition for rehearing DENIED. George, C.J., Werdegar, J. and Moreno, J. are of the opinion the petition for rehearing should be granted. |
| Jun 30 2003 | Received: Acknowledgment of receipt of remittitur. |
| Jul 18 2003 | Received: acknowledgment of receipt of exhibits from superior court. |
| Aug 5 2003 | Order filed (150 day statement) |
| Sep 15 2003 | Received letter from: U.S.S.C., dated 9/8/2003, advising cert petition filed on 8/22/2003 as No. 03-6217. |
| Dec 8 2003 | Certiorari denied by U.S. Supreme Court |
| Dec 18 2003 | Order appointing Habeas Corpus Resource Center filed The order appointing Michael G. Millman, Executive Director of the California Appellate Project, to serve as interim habeas corpus/executive clemency counsel of record for condemned prisoner Prentice Juan Snow, filed April 16, 2003, is hereby vacated. The Habeas Corpus Resource Center is hereby appointed attorney of record for condemned prisoner Prentice Juan Snow. Counsel is appointed for purposes of all postconviction proceedings in this court, and for subsequent proceedings, including the preparation and filing of a petition for clemency with the Governor of California, as appropriate. Any "petition for writ of habeas corpus will be presumed to be filed without substantial delay if it is filed . . . within 24 months" of this date (Supreme Ct. Policies Regarding Cases Arising From Judgments of Death, policy 3, timeliness std. 1-1.1), and it will be presumed that any successive petition filed within that period is justified or excused (see In re Clark (1993) 5 Cal.4th 750, 774-782), in light of prior habeas corpus counsel's respective declarations, in support of their motion to withdraw, to the effect that they were unable to discharge their duty to investigate and, if appropriate, present a habeas corpus petition on behalf of condemned prisoner Prentice Juan Snow. |
| Dec 23 2003 | Related habeas corpus petition filed (post-judgment) No. S121365 |
| Mar 2 2004 | Motion for access to sealed record filed by HCRC to inspect and copy sealed and confidential transcripts/documents in record on appeal. |
| Apr 14 2004 | Motion for access to sealed record granted Good cause appearing, the Application for an Order Allowing Counsel to Inspect and Copy Sealed and Confidential Transcripts and Other Documents in the Record on Appeal, filed on March 2, 2004, is granted. Appellant must supply the personnel and equipment necessary to undertake this review and copying of the records, which must occur on the premises of the court. |
| Oct 19 2006 | Counsel's status report received (confidential) from HCRC. |
| Aug 23 2007 | Change of contact information filed for: HCRC. |
| Briefs | |
| Dec 21 2000 | Appellant's opening brief filed |
| Sep 10 2001 | Respondent's brief filed |
| Apr 12 2002 | Appellant's reply brief filed |
