Citation 46 Cal. 4th 339
46 Cal. 4th 1006a-modification
People v. Curl
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S034072
v.
ROBERT ZANE CURL,
Fresno County
Defendant and Appellant.
Super. Ct. No. 380748-4
Defendant Robert Zane Curl was convicted by a jury of the first degree
murder of Richard Urban (Pen. Code, § 187, subd. (a))1 as to which the jury found
that defendant had personally fired one of the shots that caused Urban’s death.
The trial court then found true the special circumstance allegation that defendant
had been previously convicted of second degree murder. (§ 190.2, subd. (a)(2)).2
1 All further unspecified statutory references are to this code.
2 The basis of the prior murder special circumstance was defendant’s 1977
conviction for the murder of Michael Conroy while defendant was incarcerated at
the state prison at Vacaville. The trial court also found true allegations that
defendant had suffered two prior convictions for assault with a deadly weapon and
a third prior conviction for assault with a deadly weapon by a prisoner serving less
than a life sentence (§ 4501). The prior convictions were stricken by the court
upon pronouncement of the death sentence,
1
After a court trial, defendant was sentenced to death. This appeal is automatic.
(Cal. Const., art. VI, § 11, subd. (a); § 1239, subd. (b).)
We affirm the judgment.
I. FACTS
A. Prosecution Guilt Phase Evidence3
1. Richard Urban’s Disappearance on March 23, 1987
On March 23, 1987, Duane Holt shared a residence with Nevallene Joanne
Holt Routh and her two teen-aged sons at the corner of Hughes and Hedges Streets
in Fresno.4 Holt was a drug dealer and sold drugs out of his house. He and Nevi
Jo were both methamphetamine or “crank” users. The Holt residence was also
something of a gathering spot for young men who came and worked on cars in the
yard. One of those young men was the victim, Richard Urban, who had
previously purchased crank from Holt. Defendant and his girlfriend, Penny
3 In setting forth this evidence, we apply the familiar appellate standard that, “[o]n
appeal, we . . . construe the facts in the light most favorable to the judgment.”
(Woodman Partners v. Sofa U Love (2001) 94 Cal.App.4th 766, 771.) We include
this reminder because defendant’s rendering of the facts highlights what he deems
to be inconsistencies and credibility issues with respect to the prosecution’s
evidence and witnesses. But defendant’s decision not to attack the judgment as
unsupported by substantial evidence amounts to a concession that it is supported
by such evidence. Even if he had made a sufficiency claim, it is black letter law
that “[c]onflicts and even testimony which is subject to justifiable suspicion do not
justify reversal of a judgment, for it is the exclusive province of the trial judge or
jury to determine the credibility of a witness and the truth or falsity of the facts
upon which a determination depends.” (People v. Maury (2003) 30 Cal.4th 342,
403.) In other words, the jury resolved these credibility issues against defendant
and we are bound by that resolution. Accordingly, we set forth the evidence
without defendant’s extensive commentary regarding its reliability.
4 The witness was referred to as “Nevi Jo” at trial and is referred to by that name
for convenience. As she described it, her relationship with Holt was simply that
they “just lived in the same house.”
2
Baxter, were also frequent visitors to the Holt residence in March 1987, visiting
almost every day. Like the others, defendant and Baxter were crank users.
On March 23, defendant and Baxter dropped in at the Holt residence three
times. During their final visit, in the evening, Holt received a phone call that made
him angry. After he hung up, he told defendant that “Rich” owed him $130 and
that some people should be made an example of for not paying. According to
Baxter, defendant told Holt, “You just have to do what you have to do.” Holt said
that “Rich was coming over.” About 10 minutes after the phone conversation,
Urban arrived in a van.
Holt asked Urban where his money was. Urban told him he did not have it
because he had been kidnapped earlier that day. Instead, he offered Holt a set of
rings in payment; the rings were gold and set with black onyx.5 Holt refused but
did accept some drugs from Urban telling him, however, that he still owed him the
money. At some point, Holt said he had to go down the street and he, Urban, and
defendant left the house in defendant’s truck. When defendant and Holt returned
35 to 40 minutes later; they were sweaty and jumpy. According to Randy Little,
who was working on cars at Holt’s house, they asked for a rope or a cable to start
Urban’s van. Eventually, they pushed it out of the yard. Defendant and Holt then
went into the Holt residence. Baxter saw what she thought might be blood
smeared on Holt’s face; she remembered that Holt appeared to be nervous.
Defendant and Holt went into a bedroom. They emerged a few minutes later and
then defendant and Baxter left.
As they drove home in defendant’s truck Baxter noticed a bag on the seat of
the truck between defendant and her. She went to move it, but defendant told her
5 Richard Flanagan, a friend of Urban’s, testified that Urban had come to his
house around midnight on March 23 and tried to sell him the same rings.
3
to leave it alone. On the way to their residence, they stopped for food and cleaned
the truck, including the floorboards and the bed of the truck. When Baxter and
defendant arrived at their home, they took drugs and defendant listened to a police
scanner. Baxter overheard a police report about a man who needed assistance and
was bleeding from his head. Defendant appeared to be upset and Baxter asked
him what was wrong. He said a man had been shot and was bleeding from the
head; the report, however, had not said anything about a shooting.6
Meanwhile Urban’s “common law” wife, Mardeau Hipp had become
concerned about Urban’s whereabouts. Urban had left their house sometime after
8:30 p.m. in a van that Hipp’s father had loaned her. She had last spoken to him
sometime after midnight and asked him when he was going to be home. He told
her 15 to 20 minutes. When he failed to come home, she started calling various
people, including Holt, to see if Urban was with them. Hipp called Holt again the
next morning, still trying to locate Urban, and spoke to Holt.
2. Events on the Days Following March 23
a. The Discovery of Urban’s Body
On the morning of March 24, 1987, while delivering newspapers, Eusebio
Duran saw a man’s body off to the side of Dickinson street between the road and a
vineyard. The area surrounding the spot was agricultural and covered with
vineyards. Duran delivered a few more papers and then made a U-turn and drove
slowly past the body. The man was face up, with his arms to his side, and there
was a large pool of blood around his head. Duran drove to a grocery store and
6 In Baxter’s preliminary hearing testimony — which was read into the record
during her trial testimony — she testified that defendant told her “the kid was shot
three times,” and that, after the scanner broadcast, defendant told her that “Rich”
was on his knees when he was shot and had asked Holt, “ ‘How come this is
happening?’ ”
4
called the police. He remained in the area until the police arrived, within three
minutes of his call, and made a statement to them.
Pete Chavez, a detective with the Fresno County Sheriff’s Department,
arrived at the scene about 5:45 a.m. The weather was cold and wet as there had
been rain a few days earlier. Chavez observed that the man’s body was on its right
side and there was blood beneath his head and upper body area. The man was clad
in white pants, a tan jacket, and black tennis shoes. There were three sets of shoe
prints around the body; these were photographed. When Chavez approached the
body he saw injuries to the head. In the man’s right hand were car keys. The keys
were later identified by Mardeau Hipp as belonging to the van she had borrowed
from her father. The man was Richard Urban.
According to Jerry Nelson, the pathologist, the cause of death was gunshot
wounds to Urban’s brain, cerebrum and brain stem. Two bullets were recovered
from the crime scene and sent to the prosecution’s ballistics expert, Allen
Boudreau. A third bullet was removed from Urban’s skull and also examined by
Boudreau. Pathologist Nelson concluded that two of the three gunshot wounds
would likely have been fatal. He also concluded that two of the shots were fired
from a distance of six to 12 inches from Urban’s head. He could not determine the
distance from which the third shot was fired, except to say that the gun had not
been pressed against Urban’s head. The pathologist believed that one of the shots
was fired while Urban was lying on the ground, while another shot had been fired
from above his head and in a downward direction. He could not determine either
how many individuals had fired the shots or how many guns had been used.
Based on his examination of the three bullets, Boudreau concluded that all were
likely the same caliber, but he could not tell whether they had been fired from the
same weapon.
5
b. Urban’s Van; Defendant’s Conversation with Holt; Holt’s Arrest
About 7:40 a.m. on March 24, Kathleen Miller-Winn saw a van drive up
and come to a stop in front of her house. She saw a man in his mid-20’s to early
30’s walking away from the van. The van was still parked in front of her house
when she returned home from work that evening and it remained there for about
two days, until a neighbor called the police. The van was the vehicle that Urban
had been driving on March 23.
The morning of March 24 Baxter and defendant went to Holt’s residence.
Holt began bragging to a man named Dane, who was also present, “about taking
out somebody.” Specifically, he said he had shot Urban. Defendant said, “you
shouldn’t talk about anything to anybody.” Holt told defendant that maybe they
should not be associated with each other to which defendant replied, “Okay.
Whatever.” Later, as they drove home, Baxter asked defendant what was going on
and what Holt had been talking about. Defendant told her not to ask any more
questions about it. A day or two later defendant presented Baxter with the rings
that Urban had offered to Holt the night he was killed. Defendant told her, “We’ll
fix them and use them for our wedding rings.”7
On March 26, Holt and Nevi Jo were arrested on drug charges and their
residence was searched. Holt was charged with murder. Nevi Jo called Baxter
and told her about Holt’s arrest. Defendant was not present at the time, so Baxter
told him about the arrest later. The next day he told Baxter he and Holt had taken
Urban for a ride and were going to drop him off in the country to scare him.
7 Baxter, in turn, gave the rings to a man named Mark Bryant.
6
3. The Police Investigation
a. Footprint impressions
The footprint impressions photographed at the crime scene were analyzed
by Frederick Hansen, an identification technician for the Fresno County Sheriff’s
Department. Hansen testified that he found two categories of impressions, which
he associated with a boot and a tennis or athletic shoe. He said that there was at
least one pair of boots, or maybe more, at the crime scene. Holt wore cowboy
boots. Urban was wearing tennis shoes when he was killed, but Hansen could not
positively identify the tennis shoes prints at the scene of the crime as having been
made by Urban’s shoes.
b. Interviews with Baxter
Baxter’s name surfaced in the investigation on November 28, 1987. On
December 1, 1987 she was interviewed by Detectives Pete Chavez and Frank
Martinez of the Fresno County Sheriff’s Department while she was in jail on petty
theft and drug charges. She was interviewed a second time by Chavez, Martinez
and Carla Riba, an investigator for the Fresno County District Attorney’s Office.
No promises were made to her at either interview. During the first interview, with
Chavez and Martinez, Baxter told them about the rings that Urban had offered
Holt as payment for the money he owed Holt for drugs. As a result, the detectives
recovered the rings from Mark Bryant.
During the second interview, Baxter told Riba, among other things, that
defendant described Urban’s killing to her. She told Riba that defendant told her
he and Holt forced Urban to get on his knees, that he pleaded for help, and that
both Holt and defendant shot him. Baxter told Riba that defendant and Holt took
“[Urban] out and they shot him three times in the head.” Baxter said specifically
that defendant shot the victim. Baxter also said that both defendant and Holt told
her they had pushed a vehicle — presumably the victim’s van — out of the yard.
7
4. Defendant’s Statements to David DeSoto
In April 1987, David DeSoto, a four-time felon, was an inmate in the Los
Angeles County jail on charges of burglary and assault with intent to commit rape;
defendant was a fellow inmate.8 DeSoto was interviewed by investigator Riba and
Detective Martinez at the jail on May 5, 1988. Riba and Martinez had gone to the
jail looking for a man named “Mark Conway,” which was one of DeSoto’s several
aliases. They had come in response to DeSoto’s calls to the Fresno County
District Attorney’s Office. DeSoto hoped that by providing information about
defendant, he could get his bail reinstated, but it was not. He admitted that he had
falsely attempted to make it appear to the investigators as if he had known
defendant prior to April 1987. Neither Riba nor Martinez disclosed to DeSoto any
reports of their investigation into Urban’s murder or any details of the
investigation. DeSoto told the investigators that the victim had been shot in the
head and chest.
Subsequently, at trial, DeSoto testified that he had had a number of
conversations with defendant in April 1987. According to DeSoto, defendant told
him “he committed a murder” and “the guy that was with him got arrested behind
him.” Defendant told him the murder involved a person who owed money for
drugs. The victim was a “youngster.” DeSoto testified that defendant told him
that “[t]he person he was with shot [the victim] twice. The guy didn’t go down, or
didn’t die . . . so [defendant] said he had to do it to make sure he was dead.” He
said the victim was shot in the head and the chest. According to DeSoto,
8 Initially, the trial court issued an order prohibiting DeSoto and other witnesses
from making reference to certain facts, including the fact that defendant had been
in custody in Los Angeles, but the defense subsequently asked that this portion of
the order be lifted as to DeSoto so that the defense could question him about the
physical environment in which he overheard defendant’s telephone calls.
8
defendant told him that after the killing, the victim’s body was wrapped up and
left in a ditch near some fields. He also told DeSoto that the victim had been in
possession of some jewelry, which he and Holt removed. He said defendant told
him the victim was wearing “a blue western shirt.”9
DeSoto testified that the other person involved was named “Smitty,” and
that defendant was concerned that Smitty “was gonna . . . tell on him or snitch on
him behind it.” DeSoto testified that defendant asked him to make a phone call to
Smitty’s girlfriend, Jo.10 DeSoto made the call, and told her he had a message
from defendant for Holt “to hold his mug and not to say nothin’ and . . . that he felt
bad about” Holt having been arrested.
B. Defense Guilt Phase Evidence
The defense presented evidence that a man named Steven Farmer, rather
than defendant, had killed Urban. Penny Baxter testified that Farmer was present
at the Holt residence the night Urban was killed and was wearing boots. A witness
named David Grajiola testified that, while he and Holt were in custody together,
Holt told him that he and Farmer had “booked someone’s ass.” Cliff Garoupa, a
defense investigator for Duane Holt, testified that when he had visited Farmer in
custody, after telling him that Grajiola had accused him of being involved in the
Urban murder, Farmer told him to convey a message to a family member to “get
rid” of a pair of boots.
The defense also presented evidence that Holt alone had done the actual
shooting of the victim. According to a witness named Vivian Moore, Holt had
9 Urban was not wearing this kind of shirt when he was killed.
10 Nevi Jo testified that, after Holt was arrested, she received a call from DeSoto.
9
threatened a couple who owed him money for drugs that he had shot someone
“and that he was not afraid to do it again.”
C. Prosecution Penalty Phase Evidence
The prosecution presented evidence that in December 1975, defendant
stabbed a man named Craig Segal, who survived. In April 1977, while an inmate
at the prison at Vacaville, defendant stabbed and killed a fellow inmate named
Michael Conroy. Additionally, the prosecution presented evidence that, while
incarcerated at the Fresno County Jail in this case, defendant and another inmate
had attacked two other inmates as they were being escorted by correctional
officers; the victims were in handcuffs and leg shackles. Defendant attempted to
gouge out one of the victim’s eyes. Finally, the prosecution presented evidence
that in April 1987, after a routine traffic stop in Beverly Hills, defendant managed
to gain control of the police car in which he had been placed in handcuffs and tried
to run down the police officer who had made the stop.
D. Defense Penalty Phase Evidence
The defense presented a social history of defendant through the testimony
of Dr. Linda Poore. She testified that his early life was difficult because his
parents were teenagers when he was born and too immature and inexperienced to
be parents. Additionally, defendant was physically abused by his father and both
parents favored his brother, Stephen. She testified further that defendant attended
academically poor schools. All of this, she concluded, made him vulnerable to
bad influences, which led him into the juvenile justice system.
Defendant also presented witnesses who testified to his good character,
including his former wife, Linda Curl. She testified that she had been a drug
addict and a drug dealer before she married defendant. After they married, she
was able to remain drug-free and she, defendant, and her two children had a good
family life together. Her two children, Chaela Ingles and Richard Upshaw, also
10
testified on defendant’s behalf; both of them considered defendant to be their
father and spoke of his care and concern for them.
Linda Curl testified that defendant had had a positive work history until he
suffered a severe injury to his left hand while working for a custom cabinetmaker.
Defendant lost part of his fingers and though they were sewn back on, his manual
dexterity remained impaired. As a result of his injury, defendant went on
disability and became depressed. Eventually, he got work out of town and, away
from his family, began using amphetamines because they deadened the pain and
allowed him to continue working.
After defendant and Linda Curl divorced, she remained concerned about his
well-being and asked her friend, Jeanette, to visit him. Eventually, Jeanette and
defendant married while he was in custody and she also testified on his behalf.
She testified about her love for defendant and read the wedding vows he had
composed for their wedding.
Numerous other witnesses, friends and family of defendant and Linda Curl,
testified about his and Linda’s happy family life and defendant’s good character.
A Catholic priest, Father Gary Luiz, testified to defendant’s spiritual growth while
in custody in this case and about his poetry. A literary editor also testified about
defendant’s poetry and opined that some of it was of high literary quality. Finally,
defendant’s former parole agent testified that defendant had successfully
completed his one year of parole.
II. DISCUSSION
A. Challenge to the Constitutional Validity of Defendant’s Prior Murder
Conviction
Defendant contends that the prior-murder special-circumstance finding
should be reversed because the constitutional validity of the underlying plea,
which was the basis of the special circumstance allegation, was not proved beyond
11
a reasonable doubt. In this connection, he contends that our earlier opinion in this
case, Curl v. Superior Court (1990) 51 Cal.3d 1292, in which we held that a
defendant does not have a right to a jury trial on the constitutional validity of a
prior conviction and bears the burden of proving such invalidity by a
preponderance of the evidence, was superseded by Apprendi v. New Jersey (2000)
530 U.S. 466. In Apprendi, the Supreme Court held that “[o]ther than the fact of a
prior conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt.” (Id. at p. 490.) Two years later, in Ring v. Arizona (2002) 536
U.S. 584, the Supreme Court held that Arizona’s capital sentencing scheme ran
afoul of the Sixth Amendment because it allowed the sentencing judge, sitting
without a jury, to find an aggravating circumstance necessary for imposition of the
death penalty. (Ring, supra, 536 U.S. at p. 609.) The court, citing language from
Apprendi, stated “The dispositive question, we said, ‘is one not of form, but of
effect.’ [Citation.] If a State makes an increase in a defendant’s authorized
punishment contingent on a finding of fact, that fact — no matter how the State
labels it — must be found by a jury beyond a reasonable doubt.” (Ring, supra,
536 U.S. at p. 602.) Concluding that “Arizona’s enumerated aggravating factors
operate as ‘the functional equivalent of an element of a greater offense,’ [citation],
the Sixth Amendment requires that they be found by a jury.” (Id. at p. 609.)
As we shall explain, however, the question of the constitutional validity of
a prior conviction does not fall within the framework set forth in Apprendi and
Ring for those issues of fact as to which the Sixth Amendment requires a jury trial
and proof beyond a reasonable doubt. Accordingly, we reject defendant’s claim.
In 1977, defendant pled guilty to second degree murder and that conviction
became the basis of the sole special-circumstance allegation in the instant case.
(§ 190.2, subd. (a)(2) [“The defendant was convicted previously of murder in the
12
first or second degree’].) “By pretrial motion defendant sought to strike the prior-
murder special-circumstance allegation on grounds that he was under the influence
of drugs at the time he pled guilty to the murder of an inmate at the California
Medical Facility in Vacaville, and that he was not properly advised of his Boykin-
Tahl rights (Boykin v. Alabama (1966) 395 U.S. 238 [23 L.Ed.2d 274, 89 S.Ct.
1709]; In re Tahl (1969) 1 Cal.3d 122 [81 Cal.Rptr. 577, 460 P.2d 449]) at the
time he entered his guilty plea.” (Curl v. Superior Court, supra, 51 Cal.3d at
p. 1296.) Following a lengthy evidentiary hearing occasioned by the absence of a
reporter’s transcript of the 1977 plea, the trial court denied the motion. (Id. at pp.
1296-1299.)
Defendant filed a petition for writ of mandate that ultimately resulted in an
opinion from this court, the aforecited Curl v. Superior Court, supra, 51 Cal.3d
1292. In Curl, we concluded (1) defendant’s statutory right to a jury trial on the
truth of the prior-murder special-circumstance allegation (§ 190.4, subd. (a)) did
not encompass a jury trial on the constitutional validity of the underlying plea, and
(2) defendant had the burden of proof in establishing the constitutional invalidity
of the plea by a preponderance of the evidence. (Id. at pp. 1300-1302, 1306-
1307.) Following our decision, defendant renewed his attack on the validity of his
plea, claiming that the first hearing had been conducted without the benefit of our
decision. Another evidentiary hearing was held, at the conclusion of which the
motion was again denied.
Defendant now asserts that, contrary to our conclusions in Curl, Apprendi,
and Ring require that the constitutional validity of his 1977 plea be relitigated
before a jury and proved beyond a reasonable doubt. Not so. As noted, the right
to a jury trial discussed in Apprendi and Ring applies only to an issue of fact “that
increases the penalty for a crime beyond the prescribed statutory maximum”
(Apprendi v. New Jersey, supra, 530 U.S. at p. 490), whatever its designation.
13
Patently, the question of the constitutional validity of a prior conviction does not
present such an issue of fact. As the Attorney General points out: “Finding that
Curl was eligible for the death penalty was not contingent upon the finding that his
prior murder conviction was constitutionally valid pursuant to Boykin-Tahl.
Neither section 190.2, subdivision (a)(2) nor section 190.4 suggest such a
requirement nor do these sections state that the constitutional validity of a prior
murder conviction must be proved as an element of the offense prior to imposing
the death penalty.” A finding that the prior conviction is constitutionally valid
does not in and of itself “expose the defendant to a greater punishment than that
authorized by the jury’s verdict [.]” (Apprendi, supra, 530 U.S. at p. 494, fn.
omitted.) The prosecution must still prove the special circumstance beyond a
reasonable doubt to the trier of fact. (§ 190.4.)
Moreover, the constitutional validity of a prior conviction is an inquiry that
our prior decisions, even those predating Curl, allocated to the trial court and not
the jury. (People v. Coffey (1967) 67 Cal.2d 204, 217 [first step of procedure to
strike prior conviction is for the trial court to “hold a [pretrial] hearing outside the
presence of the jury in order to determine the constitutional validity of the charged
prior or priors”].) This is because the determination of the constitutional validity
of a prior conviction is of a very different nature from the determination of
whether the defendant suffered the prior conviction. “A prior conviction carries a
‘ “ strong presumption of constitutional regularity,” ’ and the defendant must
establish a violation of his or her rights that ‘ “so departed from constitutional
requirements” ’ as to justify striking the prior conviction.” (People v. Horton
(1995) 11 Cal.4th 1068, 1136, italics omitted.) Given the presumptive
constitutional validity of the prior conviction, a motion to strike “presents legal
questions of a far different nature than the factual determination of the existence of
the prior conviction” (Curl v. Superior Court, supra, 51 Cal.3d at p. 1303.)
14
Accordingly, we conclude that neither Apprendi nor Ring superseded or
implicitly overruled our decision in Curl. Therefore, contrary to defendant’s
argument, Apprendi did not represent an “intervening change in the law” that
would bar applying the doctrine of the law of the case. (People v. Stanley (1995)
10 Cal.4th 764, 787.) Thus, our conclusions in Curl, that where a defendant
challenges the constitutional validity of a plea the defendant must prove such
invalidity by a preponderance of the evidence, remains the law of case. Here, the
trial court conducted a second hearing following our decision in Curl and denied
the motion to strike. Because defendant does not challenge that proceeding, we
assume the trial court correctly applied Curl and affirm its ruling.
B. Guilt Phase Claims
1. Claims Related to the Testimony of David DeSoto
The bulk of defendant’s guilt phase claims relate to the testimony of David
DeSoto and fall into two broad categories.11 The first — alleging prosecutorial
and trial court misconduct — are based upon the alleged failure of the prosecutor
to have turned over to the defense notes he made that memorialized conversations
the prosecutor had with, and about, DeSoto prior to DeSoto’s testimony at
11 Here, as elsewhere, defendant asserts constitutional violations he did not
advance in the trial court. “We . . . entertain constitutional claims not raised below
only to the extent ‘the new arguments do not invoke facts or legal standards
different from those the trial court itself was asked to apply, but merely assert that
the trial court’s act or omission, insofar as wrong for the reasons actually
presented to that court, had the additional legal consequence of violating the
Constitution. . . . [¶] In [this] instance, of course, rejection, on the merits, of a
claim that the trial court erred on the issue actually before that court necessarily
leads to rejection of the newly applied constitutional “gloss” as well. No separate
constitutional discussion is required in such cases, and we therefore provide none.’
[Citation.]” (People v. Richardson (2008) 43 Cal.4th 959, 984, fn. 11.)
15
defendant’s trial. The second claim alleges that the trial court erred by excluding
impeachment evidence the defense wanted to use against DeSoto.
2. Claims of Prosecutorial and Trial Court Misconduct
Defendant asserts that DeSoto lied when he testified that “he had neither
been promised, received nor expected any benefit in return for testifying and that
any pre-trial communication he had with Mr. Hoff [the prosecutor] had solely
concerned protection of his safety,” because the prosecutor’s “undisclosed” notes
of telephone calls with and concerning DeSoto “would have revealed that DeSoto
had in fact been impliedly assured by Hoff, and expected, that the testimony he
gave would likely result in benefit to him with respect to charges pending against
him.” Thus, according to defendant, Hoff suborned DeSoto’s perjured testimony
to the extent DeSoto denied expecting or receiving any benefits for his testimony
and the trial court committed misconduct when, after reviewing Hoff’s telephone
notes in camera, declined to provide them to the defense.
The existence of the prosecutor’s telephone notes was revealed during a
discussion of whether the prosecution had complied with discovery. Defense
counsel requested that the prosecutor be ordered to search his records for evidence
of benefits promised to Penny Baxter or DeSoto. Specifically, defense counsel
alleged that “there’s been an exchange of letters between the prosecution and Mr.
DeSoto or — and/or the prison authorities to afford him certain reasonable
benefits and accommodations. We would like to have copies of any of those
letters to and from.” The prosecutor responded that he had no knowledge of any
letters with the Department of Corrections but that he had received phone calls
from the department about DeSoto’s status as a witness for purposes of
classification and placement. Defense counsel then requested any record of
telephone conversations. The prosecution said he generally made notes of his
telephone conversations and would search his files.
16
The following day, the prosecutor said he had spoken to someone in the
Department of Corrections about whether DeSoto would be testifying and whether
he would be in any danger if he did so. When defense counsel asked for a copy of
the note memorializing that conversation, the prosecutor objected. The trial court
sustained the objection on the grounds that “I don’t think this document comes
within the discovery order or the Penal Code statute, so I’m not going to order to
you to produce it.” The prosecutor indicated he was still going through his records
and the court asked him to complete his search by the following day.
The next day the prosecutor brought in a file of 57 items consisting of notes
of his telephone conversations as well as letters he had written to prison or law
enforcement personnel concerning DeSoto. He objected to turning over notes of
his telephone conversations without a preliminary inspection by the trial court to
determine whether they were discoverable. The file was designated exhibit C.
The trial court reviewed the file as well as the transcript of the original discovery
hearing before another judge and concluded that “I do not see where these notes
would fall within any of the discovery orders that are provided in there or provided
for in the Penal Code.” In response to defense counsel request that any
exculpatory material in the notes be turned over pursuant to Brady v. Maryland
(1963) 373 U.S. 83, the trial court responded, “I have reviewed them with that in
mind, and I found nothing in this file that would so qualify.”
At trial, DeSoto conceded that his purpose in contacting the prosecution
was to secure its help in the case for which he was in custody in Los Angeles
County. He testified, however, that no promises of help were made to him by
either the district attorney’s investigators or by the prosecution and that the
investigators told him they had no jurisdiction over proceedings in a different
county. With respect to his calls with Prosecutor Hoff, DeSoto testified that the
17
purpose of those calls was not to secure a benefit in his Los Angeles case but,
rather, “It [sic] would have been my safety.”
“A prosecutor’s misconduct violates the Fourteenth Amendment to the
federal Constitution when it ‘infects the trial with such unfairness as to make the
conviction a denial of due process.’ [Citations.] In other words, the misconduct
must be ‘of sufficient significance to result in the denial of the defendant’s right to
a fair trial.’ [Citation.] A prosecutor’s misconduct ‘that does not render a criminal
trial fundamentally unfair’ violates California law ‘only if it involves “ ‘the use of
deceptive or reprehensible methods to attempt to persuade either the court or the
jury.’ ” ’ [Citations.]” (People v. Harrison (2005) 35 Cal.4th 208, 242.)
“ ‘ “Under well-established principles of due process, the prosecution cannot
present evidence it knows is false and must correct any falsity of which it is aware
in the evidence it presents . . . .” [Citation.]’ ” (People v. Richardson, supra, 43
Cal.3d at p. 1014.)
As the Attorney General points out, there is no perjury unless the
challenged testimony was actually false. (§ 118, subd. (a).) Defendant fails to
persuasively point to testimony by DeSoto that fits this description. Instead, his
argument relies on a general claim that the “picture presented to the jury” about
whether DeSoto received any benefits was false. According to defendant, the jury
was led to believe that “although DeSoto had initially been induced to inform law
enforcement of incriminating facts about [defendant] because of his wish to obtain
bail and other benefits with respect to disposition of his pending charges in Long
Beach, (1) he had been quickly disabused of any such hope, (2) the only benefit he
received was protection from retaliation for his cooperation with law enforcement,
(3) his testimony at [defendant’s] trial was not influenced by any expectation of
reward, other than a vague hope, and (4) the phone conversations that DeSoto had
with prosecutor Hoff concerned nothing beside[s] his continued security in jail.
18
[¶] That picture was false because neither Mr. Hoff nor the trial judge disclosed to
the defense or the jury that DeSoto had lied about the nature of his phone calls
with Hoff and whether, notwithstanding [the district attorney’s investigators]
telling him that he would get no benefit with respect by cooperating, DeSoto had
consistently demonstrated his expectation of reward if his testimony was useful to
the prosecution and been assured that his cooperation would be made known to
authorities in Long Beach, where his case was pending. This deception was
especially egregious since prosecutor Hoff, having been a party to those phone
calls, knew that it was false and deliberately suborned the perjurious testimony.”
Defendant attempts to support this claim with an extensive analysis of the
prosecutor’s notes of his telephone calls to and about DeSoto. We have reviewed
the prosecutor’s notes and letters and find defendant’s analysis utterly
unconvincing. There are four letters from Prosecutor Hoff in exhibit C. The first
two letters, both dated December 5, 1989, are addressed respectively to a
correctional counselor at the state prison at Chino and to DeSoto himself. They
were apparently written in response to a letter to Hoff from DeSoto in November
1989 in which DeSoto expressed concern for his safety should he testify and asked
Hoff “to confirm his status” as a witness with prison officials. Hoff’s letter to the
correctional counsel confirmed that DeSoto would be called as a witness in
defendant’s trial and, in view of possible threats to his safety from defendant,
stated his belief that “DeSoto’s welfare and safety may be in danger. Therefore, I
request that you consider this information in the classification and placement of
Mr. DeSoto in your institution.” His letter to DeSoto simply confirmed that he
had talked to officials at Chino regarding DeSoto’s classification and placement.
Another letter, dated April 2, 1990 to a correctional counselor at Corcoran
State Prison similarly informed the counselor that DeSoto had cooperated with law
enforcement in defendant’s case, expressed concern for his safety, and supported
19
DeSoto’s request to be transferred to another facility. The letter was written in
response to a letter from DeSoto reporting a confrontation with other inmates over
his role in defendant’s prosecution.
The fourth letter, undated, is addressed to the deputy district attorney in
charge of DeSoto’s case in Los Angeles County at Long Beach. In it, Hoff stated
that DeSoto provided information in the Curl case that had been corroborated and
had agreed to testify. Hoff went on: “He has never requested nor has he received
any promises in exchange for his information other than a promise from me that I
would notify, in writing, the Los Angeles District Attorney’s office, his attorney
and/or the Court that he has cooperated with Fresno authorities in the Curl case.
[¶] I believe Mr. [DeSoto’s] past and anticipated future cooperation should be
considered by your office in assessing his own criminal prosecution, and I ask you
to give whatever weight you deem is appropriate to this matter.”
Hoff’s notes confirm the information in the letters: many of his
conversations with DeSoto revolved around DeSoto’s concern for his safety
because of his cooperation in defendant’s prosecution and, notwithstanding
DeSoto’s attempts to secure some benefit from that cooperation, the only
guarantee Hoff made was that he would inform the Los Angeles District
Attorney’s Office of DeSoto’s cooperation. For example, in a note dated May 26,
1988, Hoff stated: “I am making no deals w/ [DeSoto] except to convey to
L.A.D.A. that [DeSoto] appears to be giving truthful info and said he would
cooperate and testify. [¶] I asked DeLong [the Los Angeles prosecutor] to handle
his case on its merits w/o consideration of my use of [DeSoto] as a witness . . . .”
In a note dated June 1, 1988, Hoff records a conversation with DeSoto in which
DeSoto asked for help with getting a continuance and bail reduction and Hoff told
him, “I could not control that matter.” Hoff notes he called the Los Angeles
20
prosecutor, did not reach him, but was later informed that DeSoto’s case had been
continued and bail remained the same.
In a note dated November 11, 1988, Hoff recorded that he had spoken to
the Los Angeles prosecutor about his intention to use DeSoto as a witness “and
that there is no deal/consideration being extended to [DeSoto] in exchange for his
testimony” and “DeLong can deal w/[DeSoto’s] case on its merits.” To the same
effect were notations on November 18, 1988, November 28, 1988, February 17,
1989, May 22, 1989, June 6, 1989 and June 21, 1989. Each note confirms that
Hoff made no promise or inducement to DeSoto for his testimony except that he
would inform the Los Angeles District Attorney’s Office of DeSoto’s cooperation.
This record does not support defendant’s claim that DeSoto perjured
himself when he testified that he had not received any benefits in exchange for his
testimony, much less that Hoff suborned perjury. Defendant maintains that the
fact that DeSoto received a reduced sentence on the Los Angeles charges, and that
the sexual assault charge was dismissed, is evidence that he lied about not having
received any benefit for his testimony at defendant’s trial. But there is nothing in
the record before us that supports his claim that Prosecutor Hoff engineered the
reduction in the sentence and the dismissal of the charge. The record is to the
contrary — Hoff’s notes consistently demonstrate that he did not offer DeSoto any
inducements or benefits for his testimony.12 Nor do we agree with defendant that
DeSoto perjured himself when, in response to being asked about his telephone
12 Defendant insinuates that Hoff’s references to the absence of any deal with
DeSoto for his testimony is actually evidence that there was a deal and Hoff was
creating “a paper record just in case his notes were ever discovered by the
defense.” At this point, defendant’s legal analysis devolves into a conspiracy
theory.
21
conversations with Hoff, he said they involved his “safety.”13 Defendant claims
this was misleading because DeSoto left out the fact that he had sought assistance
with bail reduction and a continuance from Hoff, leaving the impression that his
safety was the only topic of discussion. We do not read the record in so narrow a
fashion; moreover, the jury learned from cross-examination that DeSoto had
sought other benefits in exchange for his testimony.
Accordingly, we reject defendant’s claim of prosecutorial misconduct.
Defendant also asserts the trial court committed misconduct, apparently
because the trial court declined to furnish Hoff’s notes to the defense at trial after
determining the notes were not discoverable pursuant to either the discovery order
in this case or section 1054.1. On this record, we find no abuse of discretion. (See
People v. Ayala (2000) 23 Cal.4th 225, 299 [“We generally review a trial court’s
ruling on matters regarding discovery under an abuse of discretion standard”].) A
fortiori, we find no misconduct.
3. Claims of Evidentiary Error
a. Expert Witness
Defendant contends that the trial court abused its discretion when it denied
his request to call Raymond Stevens, a private investigator, as an “expert to
explain how an inmate informant can obtain information used to concoct a
confession that was never made.” Defendant contends that this testimony would
have been relevant to show how David DeSoto “could assemble information about
13 Defense counsel objected to DeSoto’s answer as nonresponsive. The objection
was sustained and the answer stricken. We assume the jury understood and
followed the court’s directive to disregard the testimony. (People v. Mickey
(1991) 54 Cal.3d 612, 689, fn. 7.) Therefore, even if we were to assume that
DeSoto’s answer was misleading, it played no part in the jury’s assessment of his
credibility.
22
the accusations against [defendant] in order to create a fictitious confession . . . .”
Defendant specifically disavows any claim that he sought to have Stevens’s
testimony introduced to have Stevens render an opinion about DeSoto’s credibility
under Evidence Code section 801. Rather, he argues the evidence was admissible
under Evidence Code section 720, which defines the qualifications of an expert
witness. Defendant contends that the latter statute would have permitted Stevens
to testify to “the procedure [in the Los Angeles County jail] whereby inmates can
gain information about cases which the inmate believes the prosecutors would be
willing to offer to the inmate . . . and that the procedures are such that the inmate
can find out the foundational information without in fact having a conversation
with a particular individual” and from which the informant can cobble together a
fictitious confession. After an extended colloquy, the trial court denied the request
“on grounds of relevancy, speculation, Evidence Code section 801. It invades the
province of the jury under Evidence Code section 780. It calls for inadmissible
lay opinion testimony.”14 We find no abuse of discretion.
At trial, defendant sought to admit the testimony of Raymond Stevens.
Stevens was a 24½-year veteran of the Ventura County Sheriff’s Department
before becoming a private investigator who worked on contract with the State
Public Defender’s Office. After the trial court sustained prosecution objections to
questions about whether Stevens had dealt with inmate informants, a hearing was
14 The Attorney General contends that defendant forfeited the argument he makes
on appeal because he did not specifically refer to Evidence Code section 720. Not
so. Defendant advanced the substantive claim he repeats here — that admission of
Stevens’s testimony was not for his opinion of DeSoto’s credibility but to lay out
the “procedure” by which inmate informants gather evidence to concoct false
confessions. It is immaterial for purposes of preserving the objection that he did
not specify the precise code section where he made clear the substance, purpose
and relevance of the excluded evidence. (Evid. Code, § 354, subd. (a).)
23
held outside the presence of the jury in which the defense made an offer of proof
as to Stevens’ testimony. Characterizing DeSoto as an “inmate informant,”
defense counsel stated that Stevens had “qualified as an expert to render testimony
about inmate informants, the process, the methods of selecting, evaluating and
determining the truthfulness of their representations” and would render “his
opinion regarding the validity of Mr. DeSoto in his role of an inmate informant.”
In this connection, defense counsel argued that sections of the Penal Code that
singled out inmate informants recognized them “as a special breed of persons and
witness [sic].” Initially, the defense cited Evidence Code section 801 —
permitting expert opinion testimony — as the basis of its request.
The prosecution objected on the grounds that there was insufficient
foundation for the characterization of DeSoto as a long term inmate informant,
that there was insufficient foundation that the subject of inmate informants was a
matter for expert testimony, that the proposed testimony was neither material nor
relevant, and that the proposed testimony would invade the jury’s province as the
sole evaluator of witness credibility. The trial court agreed that there was no
support for permitting expert testimony on the subject of a witness’s credibility.
At that point, the defense backed away from its offer of proof, claiming it was not
offering Stevens as an expert on whether DeSoto was being truthful, “but about
the processes that were operative in L.A. County [jail] which would have been
operative in the utilization of Mr. DeSoto as an inmate informant in this case . . . .”
Pressed by the court for specifics, the defense said that Stevens would
testify “that there’s a regular flow of information in and about the area, how they
gather it without talking with the person. The only prerequisite that a person who
wants to be an inmate informant really has is to be able to show at some point . . .
being in the physical presence of another person.” According to the defense, the
inmate informant “gets that information by the flow of prisoners in and out of his
24
environment, the use of the media, discussions with other people, phone calls to
law enforcement officers,” and that law enforcement should use “safeguards” to
avoid false testimony by inmate informants. Asked by the court whether
Stevens’s testimony was, in effect, “ a criticism of the law enforcement conduct in
interviewing and accepting Mr. DeSoto’s statements” without applying such
safeguards, defense counsel said, “That’s part of it.”
The trial court replied that whether police applied such standards or
procedures was irrelevant when the only issue was DeSoto’s credibility, which
was a matter for the jury to decide. The court referred to section 1127a, which sets
forth the special instruction to be given for the jury to assess the testimony of an
in-custody informant.15 The court rejected the notion that, because the Legislature
had adopted this statute, “there is a newly recognized field of expertise concerning
inmate-informants . . . . [¶] The relevant part of Mr. DeSoto’s testimony is what
he had to say, whether there is any evidence of motive, bias, et cetera, which
would have to be based on facts. And it is simply a matter of assessing the
veracity of a witness. Whether some inmate-informants lie and some don’t is a
truism . . . . [¶] I think it comes back to the defense wanting this witness to give
speculative information as to why this jury should conclude that this witness is not
telling the truth. You haven’t given me any specific offer of proof as to evidence
that would rebut Mr. DeSoto’s testimony that the sole source of [his] information
15 “ ‘The testimony of an in-custody informant should be viewed with caution and
close scrutiny. In evaluating such testimony, you should consider the extent to
which it may have been influenced by the receipt of, or expectation of, any
benefits from the party calling that witness. This does not mean that you may
arbitrarily disregard such testimony, but you should give it the weight to which
you find it to be entitled in the light of all the evidence in the case.’ ” (§ 1127a,
subd. (b).) This instruction was given.
25
was [defendant], other than saying there is a methodology and it is something that
occurs in detention facilities where inmate-informants have access to other
information, and sometimes or frequently use that information as a basis for
snitching and then claim that another inmate gave him that information and
confessed, when it wasn’t the case. That strikes me as pure speculation,
something that I can’t let this jury do.”
In assessing defendant’s claim that the trial court erroneously excluded
Stevens’s testimony, we apply the deferential abuse of discretion standard.
(People v. Jablonski (2006) 37 Cal.4th 774, 805 [“ ‘[A]n appellate court applies
the abuse of discretion standard of review to any ruling by a trial court on the
admissibility of evidence . . . .’ ”].) We find no abuse here. We agree with the
trial court that, to the extent the purpose or effect of Stevens’s testimony was to
render an opinion about DeSoto’s credibility, the testimony was inadmissible.
(People v. Coffman and Marlow (2004) 34 Cal.4th 1, 82 [“The general rule is that
an expert may not give an opinion whether a witness is telling the truth, for the
determination of credibility is not a subject sufficiently beyond common
experience that the expert’s testimony would assist the trier or fact; in other words,
the jury generally is as well equipped as the expert to discern whether the witness
is being truthful”].) To the extent the purpose of the testimony was to demonstrate
how inmate informants confabulate testimony, the trial court did not abuse its
discretion in excluding the evidence on grounds of insufficient foundation in the
absence of evidence either that DeSoto was a repeat inmate informant or of
evidence contradicting his testimony that defendant was the sole source of his
information. Therefore, we reject defendant’s claim that the trial court erred when
26
it excluded Stevens’s testimony.16
b. Exclusion of Newspaper Articles
Defendant contends that the trial court abused its discretion and violated
various constitutional provisions when it refused to allow into evidence various
articles from the Fresno Bee about defendant’s case because, had they been read
by DeSoto, they may have provided him with information from which he could
have concocted his testimony. The trial court rejected the articles on the ground
that, in the absence of any evidence that DeSoto had seen the newspaper articles,
defendant’s use of them was speculative.
His claim is without merit. Because, as the trial court noted, there was no
evidence that DeSoto had obtained his information about the case from any source
other than defendant himself, admission of this evidence was not relevant to any
disputed fact but would simply have invited the jury to speculate that DeSoto,
from his jail cell in Los Angeles, had somehow come across these newspaper
articles and used them to confabulate his testimony. The trial court properly
excluded the evidence. (People v. Morrison (2004) 34 Cal.4th 698, 711
[“Evidence is irrelevant . . . if it leads only to speculative inferences”].)
c. Limitations on Cross-examination of DeSoto
During defendant’s cross-examination of DeSoto, defense counsel asked
DeSoto whether he had asked to be placed in protective custody in prior cases in
16 We deny defendant’s request that we judicially notice a report of the 1989-
1990 Los Angeles County Grand Jury regarding the involvement of jailhouse
informants in the criminal justice system in Los Angeles County. In light our
conclusion that there was no evidence DeSoto was a repeat inmate informant, the
report is irrelevant. (Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057,
1063 [“Although a court may judicially notice a variety of matters (Evid. Code,
§ 450 et seq.), only relevant material may be noticed”].)
27
order to demonstrate that DeSoto had acted as an informant in those prior cases.
The trial court permitted defense counsel to ask DeSoto whether he had sought
protective custody in this case, but not as to an earlier period of time, and
sustained relevancy objections to those questions. Defendant maintains this was
error because the question was relevant to whether DeSoto “was testifying in hope
of receiving benefits from the prosecutor.” Not so. Whether DeSoto sought to be
placed in protective custody in other cases at earlier times was not relevant to
whether he had received any benefits in connection with his testimony in this case.
The trial court did not abuse its considerable discretion in sustaining the objection.
d. Admission of Steven Farmer’s Statement
Defendant’s theory at trial was that Steven Farmer, and not defendant,
assisted Duane Holt in the murder of Richard Urban. Farmer refused to testify,
invoking his privilege against self-incrimination. Instead, the defense called Cliff
Garoupa, a defense investigator for Duane Holt. He testified that when he had
visited Farmer in custody, after telling him that Grajiola had accused him of being
involved in the Urban murder, Farmer told him to convey a message to a member
his family to “get rid” of a pair of boots. The purpose of this evidence was to
establish a consciousness of guilt on Farmer’s part. In rebuttal, the prosecution
was allowed to call Detective Pete Chavez. Chavez testified that Farmer had told
Chavez he spent the night of the murder at his parents’ house. The trial court
admitted the testimony over a defense hearsay objection under Evidence Code
section 1235, as a prior inconsistent statement.
On appeal, defendant contends, and the Attorney General concedes, that the
trial court erred in admitting the testimony under this section because that section
applies only when “the [prior] statement is inconsistent with [the witness’s]
testimony at the hearing” (Evid. Code, § 1235, italics added), and, in this case,
Farmer did not testify. Nonetheless, the Attorney General contends the statement
28
was admissible under Evidence Code section 1202 and, in any event, any error
was harmless.
Evidence Code section 1202 states in part: “Evidence of a statement or
other conduct by a declarant that is inconsistent with a statement by such declarant
received in evidence as hearsay evidence is not inadmissible for the purpose of
attacking the credibility of the declarant though he is not given and has not had an
opportunity to explain or to deny such inconsistent statement or other conduct.”
“Section 1202 creates ‘a uniform rule permitting a hearsay declarant to be
impeached by inconsistent statements in all cases, whether or not the declarant has
been given an opportunity to explain or deny the inconsistency.’ (Cal. Law
Revision Com. com., 29B, pt. 4 West’s Ann. Evid. Code (1995 ed.) foll. § 1202, p.
27.) [¶] The purpose of section 1202 is to assure fairness to the party against
whom hearsay evidence is admitted without an opportunity for cross-
examination.” (People v. Corella (2004) 122 Cal.App.4th 461, 470.)
We find Evidence Code section 1202 to be inapplicable. Farmer’s
statement was not hearsay but simply verbal conduct consisting of a directive that
was neither inherently true nor false. Furthermore, the statement was offered for
the nonhearsay purpose of demonstrating consciousness of guilt. Accordingly, as
he was not a “hearsay declarant,” section 1202 does not apply. Thus, there was no
basis upon which to permit Chavez’s testimony. It should be noted, however, that
the testimony was less than compelling rebuttal since, if Farmer had been involved
in Urban’s murder, it can be assumed he would have lied to a police detective
questioning him about it. Moreover, any error was harmless given the powerful
evidence of defendant’s guilt that included evidence that he and Holt had left
Holt’s residence with Urban the day of the murder, defendant’s possession of the
rings Urban had offered to Holt as payment for drugs and defendant’s admissions
to Baxter and DeSoto that he had shot and killed Urban.
29
C. Penalty Phase Claims
Defendant advances a number of challenges to the death penalty statute
which, as he acknowledges, we have previously considered and rejected. We do
so again.
“Section 190.2 is not impermissibly broad in violation of the Eighth
Amendment.” (People v. Loker (2008) 44 Cal.4th 691, 755; People v. Richardson,
supra, 43 Cal.4th at p. 1037.) “Section 190.3, factor (a), which allows the jury to
consider ‘[t]he circumstances of the crime of which the defendant was convicted
in the present proceeding and the existence of any special circumstances found to
be true pursuant to Section 190.1,’ does not violate the Fifth, Sixth, Eighth or
Fourteenth Amendment[s] to the United States Constitution by allowing arbitrary
imposition of the death penalty.” (People v. Loker, supra, 44 Cal.4th at p. 755.)
“[T]he statute is not unconstitutional because it does not contain a requirement that
the jury be given burden of proof or standard of proof instructions for finding
aggravating and mitigating circumstances in reaching a penalty determination,
other than other crimes evidence, and specifically that all aggravating factors must
be proved beyond a reasonable doubt, or that such factors must outweigh factors in
mitigation beyond a reasonable doubt, or that death must be found to be an
appropriate penalty beyond a reasonable doubt.” (People v. Panah (2005) 35
Cal.4th 395, 499.) “Nothing in Cunningham v. California (2007) 549 U.S. 270
[166 L.Ed.2d 856, 127 S.Ct. 856], Apprendi v. New Jersey, supra, 530 U.S. 466,
or Ring v. Arizona, supra, 536 U.S. 536, affects our conclusions in these regards.
[Citations.] [¶] The failure to require intercase proportionality does not violate
due process or the Eighth Amendment. [Citation.]” (People v. Loker, supra, 44
Cal.4th at pp. 755-756.) Finally, “[w]e again reject the argument that the death
penalty is contrary to international norms of humanity and decency, and therefore
violates the Eighth and Fourteenth Amendments.” (Ibid.; People v. Richardson,
30
supra, 43 Cal.4th at p. 1037; People v. Hillhouse (2002) 27 Cal.4th 469, 511
[“International law does not prohibit a sentence of death rendered in accordance
with state and federal constitutional and statutory requirements”].)
IV. DISPOSITION
We affirm the judgment.
MORENO, J.
WE CONCUR:
GEORGE, C. J.
KENNARD, J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
NEEDHAM, J.*
*
Associate Justice, Court of Appeal, First Appellate District, Division Five,
assigned by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.
31
See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion People v. Curl
__________________________________________________________________________________
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No.
S034072Date Filed: May 18, 2009
__________________________________________________________________________________
Court:
SuperiorCounty: Fresno
Judge: Joseph Stephen Kane
__________________________________________________________________________________
Attorneys for Appellant:
Musawwir Spiegel, under appointment by the Supreme Court, for Defendant and Appellant.__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant AttorneyGeneral, Mary Jo Graves, Assistant Attorney General, Eric L. Christoffersen, Jennifer M. Poe and Jennevee
H. De Guzman, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Musawwir SpiegelP.O. Box 1756
Davis, CA 95617-1756
(530) 758-8218
Jennevee H. De Guzman
Deputy Attorney General
1300 I Street
Sacramento, CA 94244-2550
(916) 324-5474
Automatic appeal from a judgment of death.
Opinion Information
| Date: | Citation: | Docket Number: | Category: | Status: | Cross Referenced Cases: |
| Mon, 05/18/2009 | 46 Cal. 4th 339 46 Cal. 4th 1006a-modification | S034072 | Automatic Appeal | closed; remittitur issued | CURL v. S.C. (PEOPLE) (S145195) |
Parties
| 1 | The People (Respondent) Represented by Jennevee Han Deguzman Office of the Attorney General 1300 I Street, Suite 125 Sacramento, CA |
| 2 | The People (Respondent) Represented by Attorney General - Sacramento Office Jennifer M. Poe, Deputy Attorney General P.O. Box 944255 Sacramento, CA |
| 3 | Curl, Robert Zane (Appellant) San Quentin State Prison Represented by Habeas Corpus Resource Center Michael Laurence, Executive Director 303 Second Street, Suite 400 South San Francisco, CA |
| 4 | Curl, Robert Zane (Appellant) San Quentin State Prison Represented by Office Of The State Public Defender-Sac Musawwir Spiegel, deputy 801 K Street, Suite 1100 Sacramento, CA |
| 5 | Curl, Robert Zane (Appellant) San Quentin State Prison Represented by Musawwir Spiegel Attorney at Law P.O. Box 1756 Davis, CA |
| Disposition | |
| May 18 2009 | Opinion: Affirmed |
| Dockets | |
| Jul 15 1993 | Judgment of death |
| Jul 26 1993 | Filed certified copy of Judgment of Death Rendered 7-15-93. |
| Aug 2 1993 | Application for Extension of Time filed By Court Reporter Joan Ellis to Complete R.T. |
| Aug 9 1993 | Application for Extension of Time filed By CSR Vicki E. Vaughan to Complete R.T. |
| Aug 9 1993 | Application for Extension of Time filed By CSR Jean Graveline to Complete R.T. |
| Aug 10 1993 | Extension of Time application Granted To Court Reporters (Jean Graveline and Vicki E. Vaughan) To 10-4-93 To Complete R.T. |
| Aug 11 1993 | Extension of Time application Granted To Court Reporter (Joan Ellis) To 9-3-93 To Complete R.T. |
| Oct 4 1993 | Application for Extension of Time filed By Court Reporter Vicki Vaughan to Complete R.T. |
| Oct 4 1993 | Application for Extension of Time filed By Court Reporter Jean Graveline to Complete R.T. |
| Oct 4 1993 | Application for Extension of Time filed By Court Reporter Judith Mitchell to Complete R.T. |
| Oct 8 1993 | Extension of Time application Granted To Court Reporters To 10-19-93 To Complete R.T. |
| Sep 3 1998 | Filed: Request by Counsel for Dual representation appointment. |
| Sep 3 1998 | Filed: Request by Inmate for Dual representation. |
| Sep 4 1998 | Counsel appointment order filed Donald J. Horvath Is appointed to represent Applt for Both the direct Appeal & Related State Habeas Corpus/Executive Clemency Proceedings. |
| Sep 14 1998 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Sep 15 1998 | Extension of Time application Granted To Applt To 11-30-98 To request Corr. of Record. |
| Sep 18 1998 | Filed: Suppl Proof of Service of Applic. for Ext. of time to request correction of Record. |
| Nov 23 1998 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Nov 24 1998 | Extension of Time application Granted To Applt To 1-29-99 To request Corr. of Record. |
| Nov 30 1998 | Filed: (Additional) Proof of Service of request for Eot. |
| Jan 28 1999 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Feb 19 1999 | Filed: Suppl Decl of Donald Horvath in support of request for Eot. |
| Feb 23 1999 | Extension of Time application Granted To 3-30-99 To request Record correction |
| Mar 29 1999 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Mar 29 1999 | Extension of Time application Granted To 6-1-99 To request Record correction |
| Jun 1 1999 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Jun 10 1999 | Extension of Time application Granted To 8-2-99 To request Record correction |
| Jul 19 1999 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Jul 21 1999 | Extension of Time application Granted To 10-1-99 To request Record correction. |
| Oct 4 1999 | Application for Extension of Time filed By Applt to request Corr. of the Record. |
| Oct 6 1999 | Extension of Time application Granted To 12/1/99 To Applt To request Corr. of the Record |
| Nov 29 1999 | Application for Extension of Time filed By Applt to request Corr. of the Record. |
| Nov 30 1999 | Compensation awarded counsel Atty Horvath |
| Dec 6 1999 | Filed: Suppl Proof of Service |
| Dec 13 1999 | Extension of Time application Granted To 1/31/2000 To Applt To request Corr. of the Record. |
| Jan 28 2000 | Application for Extension of Time filed To request Corr. of the Record. |
| Feb 4 2000 | Extension of Time application Granted To 3/31/2000 To Applt To request Corr. of the Record. |
| Mar 31 2000 | Application for Extension of Time filed By Applt to request Corr. of the Record. |
| Apr 11 2000 | Extension of Time application Granted To Applt To 5/30/2000 To request Corr. of the Record. no further Eot Are Contemplated. |
| May 30 2000 | Application for Extension of Time filed By Applt to request Corr. of the Record. |
| Jun 1 2000 | Extension of Time application Granted To 7/31/2000 To Applt To request Corr. of the Record. no further Eot will be Granted. |
| Aug 21 2000 | Received: Copy of applt's request for sequential designation of the record, corr. of transcripts, additional record on appeal, to examine sealed transcripts and to settle the record. (19 pp.) |
| Nov 15 2000 | Filed: applic. of atty Donald Horvath to be relieved of his appointment (as counsel for applt). |
| Nov 28 2000 | Received letter from: atty Donald Horvath, dated 11-28-2000, requesting to withdraw his motion to be relieved as counsel for applt. (note: received by FAX). |
| Nov 29 2000 | Order filed: Upon request of appointed counsel Donald J. Horvath, the application to be relieved as counsel of record for appellant Robert Zane Curl, filed November 15, 2000, is ordered withdrawn. |
| Dec 8 2000 | Filed: application of attorney Donald Horvath to be relieved of his appointment (as counsel for applt.) |
| Apr 27 2001 | Filed: "Amendment to the last filed applicaton of Atty Horvath to be relieved of his appointment in this case" |
| May 2 2001 | Order appointing State Public Defender filed The order appointing Donald J. Horvath as counsel of record for appellant Robert Zane Curl, filed September 4, 1998, is hereby vacated. The State Public Defener is hereby appointed to represent Robert Zane Curl for the direct appeal in the above automatic appeal now pending in this court. Michael G. Millman, as Executive Director of the California Appellate Project, is hereby appointed to serve as interim habeas corpus/executive clemency counsel of record for appellant Robert Zane Curl. The application of Donald J. Horvath to be relieved of his appointment, filed December 8, 2000, is dismissed as moot. Donald J. Horvath is directed to deliver to the State Public Defender, within 30 days from the filing of this order, his copy of the record on appeal in People v. Curl, all appellate work product, and all habeas corpus investigation work product. Mr. Horvath also is directed to deliver to the State Public Defender, within 30 days from the filing of this order, all trial files, reports and related materials that he has obtained from appellant's trial counsel, paralegals, experts and investigators, or from any other source. |
| Sep 4 2001 | Counsel's status report received (confidential) from State P.D. |
| Nov 7 2001 | Counsel's status report received (confidential) from State P.D. |
| Jan 7 2002 | Counsel's status report received (confidential) from State P.D. |
| Mar 8 2002 | Counsel's status report received (confidential) from State P.D. |
| Apr 2 2002 | Received copy of appellant's record correction motion received copy of applt's supplemental request for correction and completion of the record (filed in the trial court.) (27 pp.) |
| May 8 2002 | Counsel's status report received (confidential) from State P.D. |
| Jul 9 2002 | Counsel's status report received (confidential) from State P.D. |
| Aug 8 2002 | Order filed The order appointing Michael G. Millman, as Executive Director of the California Appellate Project, to serve as interim habeas corpus/executive clemency counsel of record for appellant Robert Zane Curl, filed 5-2-2001, is hereby vacated. Kevin G. Little is hereby appointed to represent appellant Curl for habeas corpus/executive clemency proceedings related to the automatic appeal now pending in this court. |
| Sep 9 2002 | Counsel's status report received (confidential) from State P.D. |
| Oct 9 2002 | Counsel's status report received (confidential) from attorney Little. |
| Nov 12 2002 | Counsel's status report received (confidential) from State P.D. |
| Dec 9 2002 | Motion to withdraw as counsel filed by the Office of the State Public Defender. |
| Dec 10 2002 | Motion for appointment of counsel filed by Musawwir Spiegel. |
| Dec 12 2002 | Counsel's status report received (confidential) from atty Little. |
| Dec 18 2002 | Counsel appointment order filed Good cause appearing, the application of appointed appellate counsel for permission to withdraw as attorney of record for appellant Robert Zane Curl, filed December 9, 2002, is granted. The order appointing the State Public Defender as appellate counsel of record for appellant Robert Zane Curl, filed May 2, 2001, is hereby vacated. Musawwir Spiegel is hereby appointed as attorney of record to represent appellant Robert Zane Curl for the direct appeal in the above automatic appeal now pending in this court. The State Public Defender is directed to deliver to Musawwir Spiegel, within 30 days from the filing of this order, the entire case file relating to appellant's automatic appeal currently in the State Public Defender's possession, including, but not limited to, the reporter's and clerk's transcripts, all case files and documents obtained from appellant's trial counsel, and all other case-related documents, including copies of all documents filed in this court. |
| Jan 22 2003 | Compensation awarded counsel Atty Little |
| Jan 24 2003 | Counsel's status report received (confidential) from atty Spiegel. |
| Feb 6 2003 | Counsel's status report received (confidential) from atty Little. |
| Feb 13 2003 | Compensation awarded counsel Atty Little |
| Apr 9 2003 | Counsel's status report received (confidential) from atty Spiegel. |
| Apr 10 2003 | Counsel's status report received (confidential) from atty Little. |
| Apr 17 2003 | Counsel's status report received (confidential) (amended report) from atty Little. |
| Apr 24 2003 | Record on appeal filed Clerk's transcript 37 volumes (9837 pp.) and reporter's transcript 55 volumes (6084 pp.) including matrerial under seal. Clerk's transcript includes 1868 pp. of juror questionnaires. |
| Apr 24 2003 | Appellant's opening brief letter sent, due: June 3, 2003. |
| May 7 2003 | Compensation awarded counsel Atty Little |
| May 29 2003 | Request for extension of time filed to file appellant's opening brief. (1st request) |
| May 29 2003 | Extension of time granted to 8/4/2003 to file appellant's opening brief. |
| Jun 5 2003 | Counsel's status report received (confidential) from atty Little. |
| Jun 11 2003 | Counsel's status report received (confidential) from atty Spiegel. |
| Jun 18 2003 | Compensation awarded counsel Atty Spiegel |
| Jul 28 2003 | Request for extension of time filed to file AOB. (2nd request) |
| Jul 31 2003 | Extension of time granted to 10-3-2003 to file AOB. The court anticipates that after that date, only three further extensions totaling 180 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it. |
| Aug 6 2003 | Counsel's status report received (confidential) from atty Little. |
| Aug 27 2003 | Compensation awarded counsel Atty Little |
| Sep 23 2003 | Request for extension of time filed to file appellant's opening brief. (3rd request) |
| Sep 26 2003 | Extension of time granted to 12/2/2003 to file appellant's opening brief. The court anticipates that after that date, only two further extensions totaling 120 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it. |
| Oct 9 2003 | Counsel's status report received (confidential) from attorney Little. |
| Oct 14 2003 | Counsel's status report received (confidential) from attorney Spiegel. |
| Nov 24 2003 | Request for extension of time filed to file appellant's opening brief. (4th request) |
| Nov 26 2003 | Extension of time granted to 2/2/2004 to file appellant's opening brief. The court anticipates that after that date, only one further extension totaling 60 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it. |
| Dec 5 2003 | Counsel's status report received (confidential) from atty Little. |
| Dec 16 2003 | Counsel's status report received (confidential) from atty Spiegel. |
| Jan 23 2004 | Request for extension of time filed to file appellant's opening brief. (5th request) |
| Jan 28 2004 | Extension of time granted to 4-2-2004 to file AOB. The court anticipates that after that date, no further extension will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it. |
| Feb 4 2004 | Counsel's status report received (confidential) from atty Little. |
| Feb 23 2004 | Counsel's status report received (confidential) from atty Spiegel. |
| Mar 23 2004 | Request for extension of time filed to file appellant's opening brief. (6th request) |
| Mar 30 2004 | Extension of time granted to 6-1-204 to file AOB. After that date, no further extension will be granted. Extension granted based upon counsel Musawwir Spiegel's representation that he anticipates filing the brief by 6-1-2004. |
| Apr 1 2004 | Motion filed (AA) Appellant's motion (by habeas corpus counsel Kevin Little) for (1) the court-ordered disqualification of the Hon. Stephen J. Kane; (2) the court-ordered disqualification of the Fresno County Superior Court; and (3) for a change of venue due to court-ordered disqualification (C.C.P., sections 170.1, 170.3). |
| Apr 5 2004 | Counsel's status report received (confidential) from atty Little. |
| Apr 22 2004 | Counsel's status report received (confidential) from atty Spiegel. |
| Apr 28 2004 | Filed: Appellant's reply (by habeas corpus counsel Kevin Little) in support of motion for (1) court-ordered disqualification of Hon. Stephen J. Kane; (2) court-orddered disqualification of Fresno County Superior Court; and (3) change of venue due to court-ordered disqualification (C.C.P. sections 170.1, 170.3) |
| May 4 2004 | Counsel's status report received (confidential) from atty Spiegel. |
| May 6 2004 | Filed: Appellant's supplemental reply (by habeas corpus counsel Kevin G. Little) re: motion for the voluntary or court ordered disqualification of the Hon. Stephen J. Kane and the Fresno County Superior Court; and for a change of venue due to voluntary court ordered disqualification (C.C.P. sec. 170.1,170.3, 170.8) |
| May 19 2004 | Request for extension of time filed to file appellant's opening brief. (7th request) |
| May 25 2004 | Extension of time granted to 7-16-2004 to file AOB. After that date, no further extension will be granted. Extension granted based upon counsel Musawwir Spiegel's representation that he anticipates filing the brief by 7-16-2004. |
| Jun 7 2004 | Counsel's status report received (confidential) from atty Little. |
| Jun 10 2004 | Filed: Declaration of attorney Kevin G. Little (confidential). |
| Jun 14 2004 | Filed: Respondent's letter response to habeas corpus counsel's motion for disqualification of Hon. Stepahen J. Kane; the Fresno County Superior Court or change of venue. |
| Jun 15 2004 | Compensation awarded counsel Atty Little |
| Jun 17 2004 | Filed: letter from respondent, dated 6-17-204, re: petitioner's disqualification motion. |
| Jun 24 2004 | Motion for access to sealed record filed motion by appellant for release of confidential files and materials. |
| Jun 25 2004 | Filed letter from: Attorney Kevin G. Little, dated 6/23/2004, in response to respondent's letter of 6/17/2004. |
| Jun 28 2004 | Filed: Supplemental proof of service of appellant's motion for release of confidential files and materials. |
| Jun 30 2004 | Counsel's status report received (confidential) from atty Spiegel. |
| Jul 1 2004 | Filed: "Corrected Application for Release of Confidential Files and Materials; Declaration of Kevin G. Little." |
| Jul 7 2004 | Request for extension of time filed to file AOB. (8th request) |
| Jul 8 2004 | Filed: Supplemental declaration in support of application for extension of time to file appellant's opening brief. |
| Jul 12 2004 | Extension of time granted to 9-14-2004 to file AOB. After that date, no further extension will be granted. Extension granted based upon counsel Musawwir Spiegel's representation that he anticipates filing the brief by 9-14-2004. |
| Jul 21 2004 | Motion denied Appellant's "Motion for (1) The Court-Ordered Disqualification of the Hon. Stephen J. Kane; (2) the Court-Ordered Disqualification of the Fresno County Superior Court; and (3) For a Change of Venue Due to Court-Ordered Disqualification," filed on April 1, 2004, is denied. |
| Aug 4 2004 | Counsel's status report received (confidential) from atty Little. |
| Aug 19 2004 | Received: letter from atty Little, dated 8-16-2004, re confidential material. |
| Sep 1 2004 | Order filed The "Application for Release of Confidential Files and Materials," filed on June 24, 2004, is granted in part and denied in part without prejudice as follows: Based on representations contained in counsel's letters dated August 10 and 16, 2004, the application is granted to the extent it requests access to volume 4 of the Supplemental Clerk's Transcript. The clerk is directed to send a copy volume to counsel. In all other respects, the application is denied without prejudice to its renewal on a showing of good cause and that counsel unsuccessfully sought access to the requested materials from counsel appointed to represent appellant on direct appeal. |
| Sep 8 2004 | Request for extension of time filed to file appellant's opening brief. (9th request) |
| Sep 10 2004 | Motion to augment record filed (AA) by appellant for augmentation of appellate record. |
| Sep 10 2004 | Extension of time granted to 10/15/2004 to file appellant's opening brief. Extension is granted based upon counsel Musawwir Spiegel's representation that he anticipates filing that brief by 10/15/2004. After that date, no further extension will be granted. |
| Sep 29 2004 | Request for extension of time filed to file AOB. (10th request) |
| Oct 1 2004 | Motion for access to sealed record filed Second application for release of confidential files and materials; declaration of atty Kevin G. Little. |
| Oct 5 2004 | Extension of time granted to 12/14/04 to file appellant's opening brief. After that date, only one further extensions totaling about 30 additional days is contemplated. |
| Oct 7 2004 | Counsel's status report received (confidential) from atty Little. |
| Oct 13 2004 | Record augmentation granted Appellant's "Motion for Augmentation of Appellate Record, filed on September 10, 2004," is granted. The clerk is directed to file, as part of the record on appeal, the document entitled "Request for Stay, Petition for Writ of Mandate, Prohibition or Other Appropriate Relief; Memorandum of Points and Authorities." The court will treat the document as a true copy of the document bearing that title that was filed in the Court of Appeal, Fifth Appellate District, on October 21, 1988, in the action entitled Robert Zane Curl v. Superior Court of the State of California for the County of Fresno, No. F011191. |
| Oct 14 2004 | Received: copy of appellant's supplemental motion for post-conviction discovery and examination of physical evidence (filed in superior court). |
| Oct 26 2004 | Filed: respondent's "Letter Brief to California Supreme Court" in response to appellant's motion filed on 10/1/2004. |
| Nov 4 2004 | Filed: Atty Kevin Little's "Reply Brief re: Second Application for Release of Confidential Files and Materials." |
| Dec 7 2004 | Counsel's status report received (confidential) from atty Little. |
| Dec 8 2004 | Request for extension of time filed to file appellant's opening brief. (11th request) |
| Dec 10 2004 | Extension of time granted to 2/14/2005 to ifle appellant's opening brief. After that date, no further extension is contemplated. |
| Jan 19 2005 | Motion for access to sealed record granted The "Second Application for Release of Confidential Files and Materials," filed on October 1, 2004, is granted in part and denied in part as follows: To the extent appellant seeks the release of Reporter's Transcript on Appeal volume 3, pages 838 to 842; Augmented Reporter's Transcript on Appeal volume IX, pages 1301 through 1400; and Augmentation to Reporter's Transcript on Appeal, volume XI, pages 1501-1515, the application is granted as follows: The clerk of this court is directed to redact the materials to omit reference to specific locations where witnesses were housed and to an unrelated case, and to provide each party with a copy of those materials as so redacted. In all other respects, the application is denied, either because the request is duplicative of the materials ordered above to be provided to the parties, because the requested materials are in the public portion of the record, or because the requested materials appear not to exist. |
| Feb 7 2005 | Counsel's status report received (confidential) from atty Little. |
| Feb 9 2005 | Request for extension of time filed to file appellant's opening brief. (12th request) |
| Feb 15 2005 | Extension of time granted to 2/28/2005 to file appellant's opening brief. Extension is granted based upon counsel Musawwir Spiegel's representation that he anticipates filing that brief by 2/28/2005. After that date, no further extension will be granted. |
| Feb 28 2005 | Appellant's opening brief filed (81,823 words; 254 pp.) |
| Mar 2 2005 | Request for judicial notice filed (AA) Appellant's Motion to take judicial notice. |
| Mar 16 2005 | Compensation awarded counsel Atty Spiegel |
| Mar 28 2005 | Request for extension of time filed to file respondent's brief. (1st request) |
| Apr 4 2005 | Extension of time granted to 5/31/2005 to file respondent's brief. |
| Apr 7 2005 | Counsel's status report received (confidential) from atty Little. |
| Apr 19 2005 | Counsel's status report received (confidential) (supplemental) from atty Little. |
| Apr 19 2005 | Received: Letter from atty Spiegel, dated 4/16/2005, advising he will be out of the country and unreachable from 4/17/2005 through 4/29/2005. |
| Apr 27 2005 | Compensation awarded counsel Atty Little |
| May 26 2005 | Request for extension of time filed to file respondent's brief. (2nd request) |
| Jun 2 2005 | Extension of time granted to 8/1/2005 to file respondent's brief. After that date, only one further extension totaling about 30 additional days will be granted. Extension is granted based upon Deputy Attorney General Jennifer M. Poe's representation that she anticipates filing that brief by 8/31/2005. |
| Jun 13 2005 | Filed: Supplemental declaration of service of application for extension of time to file respondent's brief. |
| Jul 29 2005 | Request for extension of time filed to file respondent's brief. (3rd request) |
| Aug 4 2005 | Extension of time granted to 8/31/2005 to file respondent's brief. Extension is granted based upon Deputy Attorney General Jennifer M. Poe's representation that she anticipates filing that brief by 8/31/2005. After that date, no further extension will be granted. |
| Aug 17 2005 | Counsel's status report received (confidential) from atty Little. |
| Aug 24 2005 | Opposition filed respondent's opposition to appellant's motion to take judicial notice. |
| Aug 31 2005 | Respondent's brief filed (56245 words; 174 pp.) |
| Sep 14 2005 | Request for extension of time filed to file appellant's reply brief. (1st request) |
| Sep 15 2005 | Extension of time granted to 11/21/2005 to file appellant's reply brief. |
| Oct 5 2005 | Counsel's status report received (confidential) from atty Little. |
| Nov 15 2005 | Request for extension of time filed to file appellant's reply brief. (2nd request) |
| Nov 23 2005 | Extension of time granted to 1/20/2006 to file appellant's reply brief. After that date, only three further extensions totaling about 160 additional days will be granted. Extension is granted based upon counsel Musawwir Spiegel's representation that he anticipates filing that brief by 7/1/2006. |
| Dec 12 2005 | Counsel's status report received (confidential) from atty Little. |
| Jan 17 2006 | Request for extension of time filed to file appellant's reply brief. (3rd request) |
| Jan 20 2006 | Extension of time granted to 3/21/2006 to file appellant's reply brief. After that date, only two further extensions totaling about 100 additional days will be granted. Extension is granted based upon counsel Musawwir Spiegel's representation that he anticipates filing that brief by 7/1/2006. |
| Feb 14 2006 | Counsel's status report received (confidential) from atty Little. |
| Mar 8 2006 | Compensation awarded counsel Atty Little |
| Mar 13 2006 | Request for extension of time filed to file appellant's reply brief. (4th request) |
| Mar 16 2006 | Extension of time granted to May 22, 2006 to file appellant's reply brief. After that date, only one further extension totaling about 40 additional days will be granted. Extension is granted based upon counsel Musawwir Spiegel's representation that he anticipates filing that brief by July 1, 2006. |
| Apr 19 2006 | Counsel's status report received (confidential) from atty Little. |
| May 17 2006 | Request for extension of time filed to file appellant's reply brief. (5th request) |
| May 22 2006 | Extension of time granted to July 21, 2006 to file reply brief. Extension is granted based upon counsel Musawwir Spiegel's representation that he anticipates filing that brief by July 21, 2006. After that date, no further extension will be granted. |
| Jun 14 2006 | Counsel's status report received (confidential) from atty Little. |
| Jul 12 2006 | Request for extension of time filed to file appellant's reply brief. (6th request) |
| Jul 18 2006 | Extension of time granted to August 21, 2006 to file appellant's reply brief. Extension is granted based upon counsel Musawwir Spiegel's representation that he anticipates filing that brief by August 21, 2006. After that date, no further extension is contemplated. |
| Aug 7 2006 | Counsel's status report received (confidential) from atty Little. |
| Aug 14 2006 | Request for extension of time filed to file appellant's reply brief. (7th request) |
| Aug 16 2006 | Extension of time granted to September 20, 2006 to file the appellant's reply brief. After tht date, no further extension is contemplated. Extension is granted based upon counsel Mussawir Spiegel's representation that he anticipates filing that brief by September 20, 2006. |
| Sep 12 2006 | Request for extension of time filed to file appellant's reply brief. (8th request) |
| Sep 14 2006 | Extension of time granted to October 20, 2006 to file appellant's reply brief. Extension is granted based upon counsel Musawwir Spiegel's representation that he anticipates filing that brief by October 20, 2006. After that date, no further extension will be granted. |
| Oct 5 2006 | Counsel's status report received (confidential) from atty Little. |
| Oct 18 2006 | Appellant's reply brief filed (30,313 words; 107 pp.) |
| Oct 23 2006 | Filed: supplemental declaration of service of appellant's reply brief. |
| Nov 9 2006 | Compensation awarded counsel Atty Spiegel |
| Nov 29 2006 | Compensation awarded counsel Atty Little |
| Dec 7 2006 | Counsel's status report received (confidential) from atty Little. |
| Dec 8 2006 | Compensation awarded counsel Atty Little |
| Dec 8 2006 | Received: letter from atty Musawwir Spiegel, dated December 7, 2006, advising that he will be unavailable during the period of December 15, 2006 through January 14, 2007. |
| Jun 18 2007 | Counsel's status report received (confidential) from atty Little. |
| Oct 24 2007 | Withdrawal of counsel allowed by order In conjunction with the order filed this day vacating the appointment of Kevin G. Little as habeas corpus/executive clemency counsel of record for appellant Robert Zane Curl in the above automatic appeal now pending in this court, this court retains jurisdiction to consider whether to order Little to reimburse this court for fixed fees previously paid but unearned, subject to Little's ability to demonstrate to the court that he should be credited, as appropriate, for habeas corpus "work performed that is determined by the court to be of value to the court." (See "Guidelines for Fixed Fee Appointments, on Optional Basis, to Automatic Appeals and Related Habeas Corpus Proceedings in the California Supreme Court," guideline 11 ["Court Action Upon Nonperformance of Work, and Reimbursement of Fees Upon Authorized Withdrawal of Appointed Counsel"], subpt. B.) |
| Oct 24 2007 | Counsel appointment order filed On the court's own motion, the order appointing Kevin G. Little as habeas corpus/executive clemency counsel of record for appellant Robert Zane Curl, filed August 8, 2002, is hereby vacated. 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 Robert Zane Curl. Little is hereby directed to deliver to Executive Director Millman, within 60 days from the filing of this order, all case transcripts, case files, habeas corpus investigation work product, trial files, investigation reports, 60-day status reports, and all related materials that he has obtained from appellant or from his appellate or trial counsel, paralegals, experts and investigators, or from any other source. |
| Jun 16 2008 | Received: letter from attorney Spiegel, dated June 13, 2008, advising the court of dates when counsel will be unavailable this summer. |
| Dec 10 2008 | Oral argument letter sent advising counsel that the court could schedule this case for argument as early as the February calendar, to be held the week of February 2, 2009 in Sacramento. The advisement of "focus issues," notification that two counsel are required, and any request for oral argument time in excess of 30 minutes must be submitted to the court within 10 days of the order setting the case for argument. |
| Jan 29 2009 | Order appointing Habeas Corpus Resource Center filed The order appointing Michael G. Millman, as Executive Director of the California Appellate Project, to serve as interim habeas corpus/executive clemency counsel of record for appellant Robert Zane Curl, filed October 24, 2007, is hereby vacated. On the court's own motion, the Habeas Corpus Resource Center is hereby appointed to represent appellant Robert Zane Curl for habeas corpus/executive clemency proceedings related to the above automatic appeal now pending in this court. Any "petition for writ of habeas corpus will be presumed to be filed without substantial delay if it is filed . . . within 36 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/executive clemency counsel Kevin G. Little's inability to discharge his duty to investigate and, if appropriate, present a habeas corpus petition on behalf of appellant Robert Zane Curl, and this court's delay in appointing replacement habeas corpus/executive clemency counsel. |
| Feb 3 2009 | Case ordered on calendar to be argued on Wednesday, March 4, 2009, at 1:30 p.m., in San Francisco |
| Feb 5 2009 | Filed: Letter dated February 4, 2009, advising the court that responsibility for oral argument scheduled for March 4, 2009, has been reassigned from Jennifer Poe, Deputy Attorney General to Jennevee H. DeGuzman, Deputy Attorney General. |
| Feb 10 2009 | Filed: appellant's focus issue letter, dated February 9, 2009, in which counsel also requests that he be allocated 45 minutes for argument. |
| Feb 13 2009 | Received: appearance sheet from Attorney Musawwir Spiegel, indicating 45 minutes for oral argument for appellant. |
| Feb 17 2009 | Filed: respondent's focus issues letter, dated February 13, 2009, in which counsel also requests that she be allocated 45 minutes for argument. |
| Feb 23 2009 | Filed: appellant's additional focus issues letter dated February 20, 2009. |
| Mar 4 2009 | Cause argued and submitted |
| Mar 27 2009 | Counsel's status report received (confidential) from HCRC. |
| May 15 2009 | Notice of forthcoming opinion posted |
| May 18 2009 | Opinion filed: Judgment affirmed in full opinion by Moreno, J. ----- joined by George, C.J., Kennard, Werdegar, Chin, Corrigan and Needham(CA 1 assigned) JJ. |
| May 22 2009 | Counsel's status report received (confidential) |
| Jun 3 2009 | Rehearing petition filed (1,625 words; 9 pp.) (Appellant's petition for rehearing is timely filed pursuant to California Rules of Court, rule 8.25(b)(3)(A). The petition for rehearing was sent USPS, Priority Mail on June 2, 2009.) |
| Jun 9 2009 | Time extended to consider modification or rehearing The time for granting or denying rehearing in the above-entitled case is hereby extended to and including August 14, 2009, or the date upon which rehearing is either granted or denied, whichever occurs first. |
| Jul 1 2009 | Received: Letter from attorney Musawwir Spiegel, dated June 30, 2009, advising the court he will be unavailable from July 24 to August 27, 2009. |
| Jul 8 2009 | Rehearing denied; opinion modified Baxter, J., was recused and did not participate. |
| Jul 8 2009 | Remittitur issued |
| Jul 15 2009 | Received: acknowledgment for receipt of remittitur from superior court. |
| Jul 21 2009 | Counsel's status report received (confidential) |
| Briefs | |
| Feb 28 2005 | Appellant's opening brief filed (81,823 words; 254 pp.) |
| Aug 31 2005 | Respondent's brief filed (56245 words; 174 pp.) |
| Oct 18 2006 | Appellant's reply brief filed (30,313 words; 107 pp.) |
