Citation 46 Cal. 4th 539, 208 P.3d 78, 94 Cal. Rptr. 3d 322

People v. Davis

Automatic appeal from a judgment of death.

Filed 8/26/09





IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,
Plaintiff and Respondent,
S056425
v.
RICHARD ALLEN DAVIS,
Santa Clara County
Defendant and Appellant.
Super. Ct. No. 186000
____________________________________)

BY THE COURT:
MODIFICATION OF OPINION
The opinion herein, filed on June 1, 2009, and appearing at 46 Cal.4th 539, is
modified as follows:
Immediately after the sentence on the bottom of page 595 that states, “Under
these extraordinary circumstances, Sergeant Meese’s inquiry did not violate the high
court’s decisions in Miranda, supra, 384 U.S. 436, and Edwards, supra, 451 U.S.
477,” the following sentence is added: “And, contrary to defendant’s contention in
his petition for rehearing, nothing in the United States Supreme Court’s recent
decision in Montejo v. Louisiana (2009) 544 U.S. ___ [129 S. Ct. 2079] compels a
different conclusion.”
This modification does not affect the judgment.


1
Opinion Information
Date: Citation: Docket Number: Category: Status:
Wed, 08/26/2009 46 Cal. 4th 539, 208 P.3d 78, 94 Cal. Rptr. 3d 322 S056425M Automatic Appeal closed; remittitur issued
Parties
1 Davis, Richard Allen (Appellant)
San Quentin State Prison
Represented by Phillip H. Cherney
Attorney At Law
214 S. Johnson Street
Visalia, CA
2 The People (Respondent)
Represented by Ronald S. Matthias
Office of the Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA
3 The People (Respondent)
Represented by Bruce Ortega
Office of the Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA
Disposition
Jun 1 2009 Opinion: Affirmed
Dockets
Sep 26 1996 Judgment of death
Oct 1 1996 Filed certified copy of Judgment of Death Rendered
September 26, 1996. (note: change of venue from Sonoma County)
Oct 28 1996 Application for Extension of Time filed
By Court Reporter Linda Cytron to Complete R.T.
Oct 28 1996 Application for Extension of Time filed
By Court Reporter Cindy Mohr to Complete R.T.
Oct 30 1996 Extension of Time application Granted
To Court Reporters To 12-16-96 To Complete R.T.
Nov 18 1996 Application for Extension of Time filed
By Sonoma County Court Reporters to Complete R.T.
Nov 21 1996 Extension of Time application Granted
To Sonoma County Court Reporters To 12-16-96 To Complete R.T.
Dec 19 1996 Application for Extension of Time filed
By Sonoma County Court Reporters to Complete R.T.
Dec 23 1996 Extension of Time application Granted
To Sonoma County Court Reporters To January 15, 1997 To Complete R.T.
Jan 17 1997 Application for Extension of Time filed
By Sonoma Co. Court Reporters to Complete R.T.
Jan 21 1997 Extension of Time application Granted
To Sonoma Co. Court Reporters To 2-18-97 To Complete R.T.
Oct 20 1999 Filed:
Petition to Review all Documents filed by Applt Counsel (Pro Se Petition)
Dec 2 1999 Filed letter from:
Applt; dated 11/29/99 Re Pro Se Petn. filed 10/20/99.
Dec 15 1999 Order filed:
Appellant's motion, received October 19, 1999, entitled: "Petition to Bar State Level Death Penalty Appellate Attorneys From Filing Motions, Briefs, and/or Other Legal Documents, Upon the Petitioner/Appellant's Behalf, Without Petitioner/Appellant's Prior Review Within a Time Limit; For Petitioner/Appellant to Review and/or to Add Input and/or to Question Said Documents" is denied. Appellant's request, received December 2, 1999, requesting that this court rule on his earlier motion, which was received on October 19, 1999, is dismissed as moot.
May 10 2001 Filed:
Applt.'s request that Phillip H. Cherney be appointed as counsel in the direct appeal and habeas corpus/clemency proceedings.
May 18 2001 Filed:
Request of atty. Phillip H. Cherney for appointment in the direct appeal and habeas corpus/clemency proceedings.
Jun 13 2001 Counsel appointment order filed
appointing Phillip H. Cherney to represent applt for both the direct appeal and related state habeas corpus/executive clemency proceedings.
Jun 13 2001 Compensation awarded counsel
Atty Cherney
Jun 28 2001 Received:
notice from superior court that record on appeal was mailed to applt's counsel on 6-27-2001.
Aug 14 2001 Counsel's status report received (confidential)
Sep 28 2001 Application for Extension of Time filed
By applt. to request corr. of the record. (1st request)
Oct 3 2001 Extension of Time application Granted
To 11/30/2001 to applt. to request corr. of the record.
Oct 15 2001 Counsel's status report received (confidential)
Nov 30 2001 Request for extension of time filed
By applt. to request correction of the record. (2nd request)
Nov 30 2001 Extension of time granted
To 1/29/2002 to applt. to request correction of the record.
Dec 21 2001 Counsel's status report received (confidential)
Dec 21 2001 Counsel's status report received (confidential)
(supplemental)
Jan 28 2002 Request for extension of time filed
By applt. to request correction of the record. (3rd request)
Jan 31 2002 Extension of time granted
To 4/2/2002 to applt. to request correction of the record. The court anticipates only three further extensions totaling 180 will be granted.
Feb 21 2002 Counsel's status report received (confidential)
Apr 3 2002 Request for extension of time filed
By applt. to request correction of the record. (4th request)
Apr 11 2002 Extension of time granted
To 5/3/2002 to applt. to request correction of the record. The court anticipates that only two further extensions totaling 120 additonal days will be granted.
Apr 17 2002 Filed:
The order filed on 4/11/2002 is amended to read as follows: Good cause appearing, counsel's request for an extension of time in which to request correction of the record in the superior court is granted to June 3, 2002. The court anticipates that after that date, only two further extensions totaling 120 additional days will be granted. Counsel is ordered to inform the Santa Clara County Superior Court and his or her assisting attorney or entity, if any, of this schedule, and take all steps necessary to meet this schedule.
Apr 23 2002 Counsel's status report received (confidential)
Jun 3 2002 Request for extension of time filed
To applt. to request correction of the record. (5th request)
Jun 10 2002 Extension of time granted
To 8/2/2002 to applt. to request correction of the record. The court anticipates that after that date, only one further extension totaling 60 additional days will be granted. Counsel is ordered to inform the Santa Clara County Superior Court and his assisting attorney of this schedule, and to take all steps necessary to meet it.
Jul 31 2002 Request for extension of time filed
By applt.to request correction of the record. (6th request)
Aug 1 2002 Extension of time granted
To 10/1/2002 to applt. to request correction of the record. The court anticipates that after that date, no further extension will be granted. Counsel is ordered to inform the Santa Clara County Superior Court and 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 take all steps necessary to meet this schedule.
Sep 13 2002 Counsel's status report received (confidential)
Sep 30 2002 Request for extension of time filed
By appellant to request correction of the record. (7th request)
Oct 2 2002 Extension of time granted
To 10/31/2002 to appellant to request correction of the record. Extension is granted based upon counsel Phillip H. Cherney's representation that he anticipates filing the request in the superior court by 10/31/2002. After that date, no further extension will be granted. Counsel for appellant is ordered to serve a copy of the record correction motion on this court upon its filing in the superior court.
Nov 1 2002 Received copy of appellant's record correction motion
Application to correct, augment and settle the record. (17 pp.)
Nov 13 2002 Compensation awarded counsel
Atty Cheney
Nov 18 2002 Counsel's status report received (confidential)
Jan 15 2003 Counsel's status report received (confidential)
Mar 18 2003 Counsel's status report received (confidential)
May 28 2003 Counsel's status report received (confidential)
Jun 11 2003 Compensation awarded counsel
Atty Cherney
Jun 24 2003 Compensation awarded counsel
Atty Cherney
Jul 30 2003 Counsel's status report received (confidential)
Sep 29 2003 Counsel's status report received (confidential)
Dec 3 2003 Counsel's status report received (confidential)
Feb 3 2004 Counsel's status report received (confidential)
Apr 2 2004 Counsel's status report received (confidential)
Apr 16 2004 Note:
Certain portions of the record returned to trial court to correct defeciencies in CT re juror redaction and to prepare reporter's transcript index pursuant to Calif. Rules of Court, rule 9(2)(3). Record to be returned on or before 5/14/2004.
Apr 21 2004 Compensation awarded counsel
Atty Cherney
May 18 2004 Compensation awarded counsel
Atty Cherney
May 24 2004 Record on appeal filed
Clerk's transcript 56 volumes (15966 pp.) and reporter's transcript 142 volumes (19264 pp.), including material under seal; ASCII disks. Clerk's trancript includes 8211 pp. of juror questionnaires.
May 24 2004 Appellant's opening brief letter sent, due:
July 6, 2004.
Jun 1 2004 Counsel's status report received (confidential)
Jun 9 2004 Compensation awarded counsel
Atty Cherney
Jul 6 2004 Request for extension of time filed
to file appellant's opening brief. (1st request)
Jul 12 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 9/7/2004 to file appellant's opening brief.
Aug 30 2004 Request for extension of time filed
to file appellant's opening brief. (2nd request)
Aug 30 2004 Counsel's status report received (confidential)
Aug 31 2004 Extension of time granted
to 11-8-2004 to file AOB.
Nov 4 2004 Counsel's status report received (confidential)
Nov 4 2004 Request for extension of time filed
to file appellant's opening brief. (3rd request)
Nov 5 2004 Extension of time granted
to 1/7/2005 to file appellant's opening brief.
Jan 6 2005 Counsel's status report received (confidential)
Jan 6 2005 Request for extension of time filed
to file appellant's opening brief. (4th request)
Jan 6 2005 Extension of time granted
to 3/8/2005 to file appellant's opening brief.
Jan 31 2005 Counsel's status report received (confidential)
(supplemental)
Feb 28 2005 Counsel's status report received (confidential)
Feb 28 2005 Request for extension of time filed
to file appellant's opening brief. (5th request)
Mar 3 2005 Extension of time granted
to 5/9/2005 to file appellant's opening brief. After that date, only one further extension totaling about 30 additional days will be granted. Extension is granted based upon counsel Phillip H. Cherney's representation that he anticipates filing that brief by the end of 5/2005.
May 4 2005 Request for extension of time filed
to file appellant's opening brief. (6th request)
May 4 2005 Counsel's status report received (confidential)
May 11 2005 Extension of time granted
to 7/8/2005 to file appellant's opening brief. Extension is granted counsel Phillip H. Cherney's representation that he anticipates filing that brief by 7/8/2005. After that date, no further extension will be granted.
May 11 2005 Compensation awarded counsel
Atty Cherney
Jul 7 2005 Filed:
appellant's application for permission to file oversized AOB. (brief submitted under separate cover)
Jul 11 2005 Order filed
Appellant's application for permission to file oversized appellant's opening brief is granted.
Jul 11 2005 Appellant's opening brief filed
(128,508 words; 482 pp.)
Jul 13 2005 Filed:
Declaration of attorney Phillip H. Cherney pursuant to P.C. Sect. 1241 (confidential).
Jul 13 2005 Counsel's status report received (confidential)
Jul 20 2005 Compensation awarded counsel
Atty Cherney
Aug 1 2005 Request for extension of time filed
to file respondent's brief. (1st request)
Aug 2 2005 Extension of time granted
to 10/11/2005 to file respondent's brief.
Sep 12 2005 Counsel's status report received (confidential)
Oct 7 2005 Request for extension of time filed
to file respondent's brief. (2nd request)
Oct 14 2005 Extension of time granted
to 12/8/2005 to file respondent's brief. After that date, only three further extensions totaling about 160 additional days are contemplated. Extension is granted based upon Supervising Deputy Attorney General Ronald S. Matthias's representation that he anticipates filing that brief by 5/15/2006.
Nov 14 2005 Counsel's status report received (confidential)
Nov 22 2005 Compensation awarded counsel
Atty Cherney
Dec 5 2005 Request for extension of time filed
to file respondent's brief. (3rd request)
Dec 9 2005 Extension of time granted
to 2/6/2006 to file the respondent's brief. After that date, only two further extensions totaling about 100 additional days are contemplated. Extension is granted based upon Supervising Deputy Attorney General Ronald Matthias's representation that he anticipates filing that brief by 5/15/2006.
Jan 18 2006 Counsel's status report received (confidential)
Feb 3 2006 Request for extension of time filed
to file respondent's brief. (4th request)
Feb 7 2006 Extension of time granted
to 4/3/2006 to file the respondent's brief. After that date, only one further extension totaling about 70 additional days will be granted. Extension is granted based upon Supervising Deputy Attorney General Ronald S. Matthias's representation that he anticipates filing that brief by 6/14/2006.
Mar 21 2006 Counsel's status report received (confidential)
Apr 3 2006 Request for extension of time filed
to file respondent's brief. (5th request)
Apr 10 2006 Extension of time granted
to June 14, 2006 to file the respondent's brief. After that date, no further extension is contemplated. Extension is granted based upon Supervising Deputy Attorney General Ronald S. Matthias's representation that he anticipates filing that brief by June 14, 2006.
Apr 26 2006 Compensation awarded counsel
Atty Cherney
May 23 2006 Counsel's status report received (confidential)
Jun 14 2006 Respondent's brief filed
(92,244 words; 290 pp.)
Jun 30 2006 Request for extension of time filed
to file appellant's reply brief. (1st request)
Jul 6 2006 Extension of time granted
to September 5, 2006 to file appellant's reply brief.
Jul 25 2006 Counsel's status report received (confidential)
Aug 30 2006 Request for extension of time filed
to file appellant's reply brief. (2nd request)
Sep 6 2006 Extension of time granted
to November 6, 2006 to file appellant's reply brief.
Nov 3 2006 Request for extension of time filed
to file appellant's reply brief. (3rd request)
Nov 9 2006 Extension of time granted
to January 5, 2007 to file the appellant's reply brief. After that date, only two further extensions totaling about 100 additional days are contemplated. Extension is granted based upon counsel Phillip H. Cherney's representation the he anticipates filing that brief by late winter or early spring 2007.
Nov 27 2006 Counsel's status report received (confidential)
Dec 20 2006 Filed:
Declaration of Phillip H. Cherney (confidential)
Jan 3 2007 Request for extension of time filed
to file appellant's reply brief (4th request) and request to file supplemental opening brief.
Jan 8 2007 Extension of time granted
to March 6, 2007 to file the appellant's reply brief. After that date, only one further extension totaling about 40 additional days is contemplated. Extension is granted based upon counsel Phillip H. Cherney's representation that he anticipates filing that brief by early spring, 2007. Counsel's request for permission to incorporate supplemental argument VIII.A into appellant's reply brief is denied without prejudice to counsel's filing a separate supplemental appellant's opening brief raising that argument.
Jan 22 2007 Counsel's status report received (confidential)
from atty Cherney.
Jan 24 2007 Compensation awarded counsel
Atty Cherney
Feb 26 2007 Request for extension of time filed
to file appellant's reply brief. (5th request)
Mar 5 2007 Extension of time granted
Good cause appearing, and based upon counsel Phillip H. Cherney's representation that he anticipates filing the appellant's reply brief and supplemental appellant's opening brief by May 7, 2007, counsel's request for an extension of time in which to file those briefs is granted to May 7, 2007. After that date, no further extension is contemplated.
Mar 26 2007 Counsel's status report received (confidential)
Apr 26 2007 Compensation awarded counsel
Atty Cherney
May 7 2007 Filed:
Application for Permission to File Appellant's Oversized Reply Brief and Supplemental Opening Brief.
May 7 2007 Received:
Appellant's Reply Brief "under seperate cover; (48,000 words; 180 pp.)
May 7 2007 Received:
Appellant's Supplemental Opening Brief "under seperate cover" (1,520 words; 6 pp.)
May 10 2007 Order filed
Appellant's "Application for Permission to File Appellant's Oversized Reply Brief and Supplemental Opening Brief" is granted. Any supplemental respondent's brief is to be served and filed on or before June 11, 2007.
May 10 2007 Supplemental brief filed
Appellant's supplemental opening brief. (1,520 words; 6 pp.)
May 10 2007 Appellant's reply brief filed
(48,000 words; 180 pp.)
May 21 2007 Counsel's status report received (confidential)
from atty Cherney.
May 21 2007 Supplemental brief filed
by respondent. (1,111 words; 5 pp.)
May 23 2007 Filed:
declaration of counsel Cherney. (confidential)
May 31 2007 Compensation awarded counsel
Atty Cherney
Aug 3 2007 Counsel's status report received (confidential)
from atty Cherney.
Oct 2 2007 Counsel's status report received (confidential)
from atty Cherney.
Oct 9 2007 Received:
copy of appellant's motion to preserve evidence, exhibits, files and other items related to automatic appeal (filed in Superior Court of Santa Clara County)
Oct 9 2007 Received:
copy of appellant's motion for post-conviction discovery and for examination of physical evidence pursuant to Penal Code, section 1054.9. (filed in Superior Court of Santa Clara County)
Oct 9 2007 Habeas funds request filed (confidential)
Nov 5 2007 Related habeas corpus petition filed (concurrent)
case no. S157917.
Nov 28 2007 Order filed re habeas funds request (confidential)
Mar 24 2008 Exhibit(s) lodged
People's exhibits C, D, G, H, I, J, 53, 55, 85, 86, 87, 88, 89, 91, 92, 93, 94, 113, 114, 115, 124, 125, 126, 127, 128, 135, 137, 138, 139, 140, 148A, 148, 155A, 155, 161A, 161B, 161C, 161D, 161E, 164, 165, 166, 167, 168, 169, 170, 174, 175, 176, 177, 183, 184, 185, 186, 187, 193, 196A, 196B, 196C, 196D, 196F, 245, 246, 247, 248, 249, 250, 251, 300, 301, 302, 303, 304, 305, 306, 307, 308 and 328 . Defense exhibits 90, 134, 136, 1008, 1009, 1010, 1011, 1012, 1013, 1014, 1015, 1016, 1017, 1018, 1007 and 1006.
Apr 16 2008 Exhibit(s) returned
to Superior Court. People's exhibits no. 85, 86, 87, 88, 89, 91, 92, 93, and 94. Court exhibits C, G, H, I, and J. Defense exhibit no. 90.
Apr 17 2008 Filed:
additional record: 107 vols. of Supplemental Clerk's Transcript on Appeal (28,390 pp.), containing juror hardship forms and juror questionnaires from the Superior Court of Sonoma County.
Apr 17 2008 Note:
sent letter to counsel advising that additional record was filed this date.
Apr 25 2008 Exhibit(s) lodged
People's exhibits - 11, 12, 85, 85a, 86, 87, 87a, 88, 89, 90, 91, 92, 93 and 94. Court's exhibits - C, C-1, D, G, H, I and J.
May 29 2008 Exhibit(s) lodged
People's exhibits - 14a, 14b and 15a.
May 30 2008 Received:
acknowlegment of receipt of exhibits from Santa Clara County Superior Court.
Jul 30 2008 Exhibit(s) lodged
People's exhibits, nos. 341, 342, 343 and 344. (from penalty phase)
Sep 17 2008 Compensation awarded counsel
Atty Cherney
Nov 26 2008 Oral argument letter sent
advising counsel that the court could schedule this case for argument as early as the January calendar, to be held the week of January 5, 2009, in San Francisco. 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.
Dec 2 2008 Note:
corrected oral argument letter sent to counsel this date.
Dec 15 2008 Received:
letter from Attorney Phillip H. Cherney, dated December 12, 2008, regarding the scheduling of oral argument.
Jan 8 2009 Compensation awarded counsel
Atty Cherney
Feb 3 2009 Case ordered on calendar
to be argued on Tuesday, March 3, 2009, at 1:30 p.m., in San Francisco
Feb 6 2009 Exhibit(s) lodged
Sonoma County People's exhibit no. 10 (jail telephone log)
Feb 18 2009 Filed:
respondent's focus issues letter, dated February 17, 2009.
Feb 19 2009 Filed:
appellant's focus issues letter, dated February 19, 2009.
Mar 2 2009 Request for Extended Media coverage Filed
KTVU, Channel 2 by Carma Hassan , planner.
Mar 2 2009 Request for Extended Media coverage Granted
The request for extended media coverage, filed by KTVU, Channel 2 on March 2, 2009, is granted subject to the conditions set forth in rule 1.150, California Rules of Court.
Mar 3 2009 Cause argued and submitted
Mar 12 2009 Compensation awarded counsel
Atty Cherney
Apr 17 2009 Compensation awarded counsel
Atty Cherney
May 29 2009 Notice of forthcoming opinion posted
Jun 1 2009 Opinion filed: Judgment affirmed in full
opinion by Kennard, J. -----joined by George, C.J., Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ.
Jun 4 2009 Request for extension of time filed
by appellant to file petition for rehearing.
Jun 15 2009 Rehearing petition filed
by appellant. (3,180 words; 14 pp.)
Jun 19 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 28, 2009, the date upon which rehearing is either granted or denied, whichever comes first.
Jun 19 2009 Order filed
Appellant's "Application for Extension of Time to File Petition for Rehearing" is denied as moot.
Jul 31 2009 Habeas funds request filed (confidential)
Aug 13 2009 Compensation awarded counsel
Atty Cherney
Aug 26 2009 Rehearing denied; opinion modified
The opinion is modified on the court's own motion. The petition for rehearing is denied.
Aug 26 2009 Opinion modified - no change in judgment
The opinion herein, filed on June 1, 2009, and appearing at 46 Cal.4th 539, is modified as follows: Immediately after the sentence on the bottom of page 595 that states, "Under these extraordinary circumstances, Sergeant Meese's inquiry did not violate the high court's decisions in Miranda, supra, 384 U.S. 436, and Edwards, supra, 451 U.S. 477, " the following sentence is added: "And, contrary to defendant's contention in his petition for rehearing, nothing in the United States Supreme Court's recent decision in Montejo v. Louisiana (2009) 544 U.S. ___ [129 S. Ct. 2079] compels a different conclusion." This modification does not affect the judgment.
Aug 26 2009 Remittitur issued
Briefs
Jul 11 2005 Appellant's opening brief filed
(128,508 words; 482 pp.)
Jun 14 2006 Respondent's brief filed
(92,244 words; 290 pp.)
May 10 2007 Appellant's reply brief filed
(48,000 words; 180 pp.)

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