Stanford Law School - Robert Crown Law Library

Filed 2/20/08

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
S049973
Plaintiff and Respondent,
Los Angeles County
v.
Super. Ct. No. LA015339
)
DOUGLAS OLIVER KELLY,
ORDER MODIFYING OPINION
[NO CHANGE IN JUDGMENT]
Defendant and Appellant.

THE COURT:
The majority opinion filed December 6, 2007, and published at 42 Cal.4th 763
is modified as follows:
In the second paragraph on page 799, the second sentence, which reads, “We see
nothing in Payne v. Tennessee, supra, 501 U.S. 808, or our own cases, that prohibits
comparing the victim and the defendant,” is deleted and replaced with the following
sentence: Nothing in the record, however, shows that such a comparison was made in
this case.
This modification does not affect the judgment.

---

Automatic appeal from a judgment of death.

Opinion Information

Date:	Citation:	Docket Number:	Category:	Status:	Cross Referenced Cases:
Wed, 02/20/2008	42 Cal.4th 763 original opinion 42 Cal.4th 1120a modification	S049973M	Automatic Appeal	closed; remittitur issued	KELLY (DOUGLAS) ON H.C. (S161036)

Disposition
Dec 6 2007	Opinion: Affirmed

Dockets
Nov 8 1995	Judgment of death
Nov 13 1995	Filed certified copy of Judgment of Death Rendered   11-8-95.
Mar 29 2001	Order appointing State Public Defender filed   for direct appeal only.
May 10 2001	Received document entitled:   "Notice of transmittal of record appeal" from Superior Court, advising that the record was transmitted to Applt.'s counsel on 4/9/2001.
May 29 2001	Counsel's status report received (confidential)   from State P.D.
Jul 11 2001	Application for Extension of Time filed   By applt. to request corr. of the record. (1st request)
Jul 13 2001	Extension of Time application Granted   To 9/11/2001 to applt. to request corr. of the record.
Jul 30 2001	Counsel's status report received (confidential)   from State P.D.
Sep 6 2001	Counsel's status report received (confidential)   from State P.D.
Sep 6 2001	Application for Extension of Time filed   by applt. to request corr. of the record. (2nd request)
Sep 13 2001	Extension of Time application Granted   To 11/14/2001 to applt. to request corr. of the record.
Nov 9 2001	Request for extension of time filed   by applt. to request corr. of the record. (3rd request)
Nov 9 2001	Counsel's status report received (confidential)   from State P.D.
Nov 16 2001	Extension of Time application Granted   To 1/14/2002 to applt. to request corr. of the record. The court anticipates that after that date only 2 further extensions of time totaling 120 additional days will be granted.
Jan 10 2002	Request for extension of time filed   By applt. to request correction of the record. (4th request)
Jan 10 2002	Counsel's status report received (confidential)   from State P.D.
Jan 15 2002	Extension of time granted   To 3/15/2002 to applt. to request correction of the record. The court anticipates that only one further extension totaling 60 additional days will be granted.
Mar 14 2002	Request for extension of time filed   By applt. to request correction of the record. (5th request)
Mar 14 2002	Counsel's status report received (confidential)   from State P.D.
Mar 19 2002	Extension of time granted   To 5/14/2002 to applt. to request correction of the record. Dep. State Public Defender Young anticipates filing the request in the superior court by 6/2002. Only one futher extension totaling 60 days is contemplated.
May 13 2002	Request for extension of time filed   By applt. to request correction of the record. (6th request)
May 13 2002	Counsel's status report received (confidential)   from State P.D.
May 16 2002	Extension of time granted   To 7/15/2002 to applt. to request correction of the record. Dep. State Public Defender Young anticipates filing the request in the superior court by 7/15/2002. No further extension is contemplated.
Jul 12 2002	Counsel's status report received (confidential)   from State P.D.
Jul 15 2002	Received copy of appellant's record correction motion   (26 pp.)
Sep 12 2002	Counsel's status report received (confidential)   from State P.D.
Nov 12 2002	Counsel's status report received (confidential)   from State P.D.
Jan 7 2003	Counsel's status report received (confidential)   from State P.D.
Jan 24 2003	Record on appeal filed   Clerk's transcript 22 volumes (5339 pp.) and reporter's transcript 19 volumes (3216 pp.) including material under seal; ASCII disks. Clerk's transcript includes 4100 pp. of juror questionnaires.
Jan 24 2003	Appellant's opening brief letter sent, due:   March 5, 2003.
Feb 5 2003	Filed:   One volume of reporter's transcript, proceedings of 1/10/2003. (1 pp.)
Feb 27 2003	Counsel's status report received (confidential)   from State P.D.
Feb 27 2003	Request for extension of time filed   to file appellant's opening brief. (1st request)
Feb 28 2003	Extension of time granted   to 5/5/2003 to file appellant's opening brief.
Apr 29 2003	Request for extension of time filed   to file appellant's opening brief. (2nd request)
Apr 29 2003	Counsel's status report received (confidential)   from State P.D.
May 1 2003	Extension of time granted   to 7/7/2003 to file appellant's opening brief.
Jul 1 2003	Counsel's status report received (confidential)   from State P.D.
Jul 1 2003	Request for extension of time filed   to file appellant's opening brief. (3rd request)
Jul 2 2003	Extension of time granted   to 9/5/2003 to file appellant's opening brief.
Aug 29 2003	Request for extension of time filed   to file AOB. (4th request)
Aug 29 2003	Counsel's status report received (confidential)   from State P.D.
Sep 3 2003	Extension of time granted   to 11/4/2003 to file appellant's opening brief.
Oct 29 2003	Request for extension of time filed   to file appellant's opening brief. (5th request)
Oct 29 2003	Counsel's status report received (confidential)   from State P.D.
Nov 4 2003	Extension of time granted   to 1/5/2004 to file appellant's opening brief. The court anticipates that after that date, only one further extension totaling about 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 29 2003	Counsel's status report received (confidential)   from State P.D.
Dec 29 2003	Request for extension of time filed   to file appellant's opening brief. (6th request)
Jan 6 2004	Extension of time granted   to 3-8-2004 to file AOB. 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.
Mar 3 2004	Counsel's status report received (confidential)   from State P.D.
Mar 3 2004	Request for extension of time filed   to file appellant's opening brief. (7th request)
Mar 12 2004	Extension of time granted   to 5/7/2004 to file appellant's opening brief. The court anticipates that after that date, no further extension will be granted. Counsel is ordered to inform his or her supervising attorney, if any, of this schedule, and to take all steps necessary to meet it.
May 3 2004	Request for extension of time filed   to file appellant's opening brief. (8th request)
May 4 2004	Counsel's status report received (confidential)   from State P.D.
May 7 2004	Extension of time granted   to 7-6-2004 to file AOB. The court anticipates that after that date, only one further extension totaling about 60 additional days will be granted. Counsel is ordered to inform his or her supervising attorney, if any, of this schedule, and to take all steps necessary to meet it.
Jul 6 2004	Counsel's status report received (confidential)   from State P.D.
Jul 6 2004	Request for extension of time filed   to file appellant's opening brief. (9th request)
Jul 9 2004	Extension of time granted   to 9-7-2004 to file AOB. After that date, no further extension is contemplated. Extension granted based upon Senior Deputy SPD Evan Young's representation that she anticipates filing the brief by 9-7-2004.
Aug 1 2004	Counsel's status report received (confidential)   from State P.D.
Aug 31 2004	Request for extension of time filed   to file appellant's opening brief. (10th request)
Sep 7 2004	Extension of time granted   to 10/7/2004 to file appellant's opening brief. Extension is granted based upon Senior Deputy State Public Defender Evan Young's representation that she anticipates filing that brief by 10/7/2004. After that date, no further extension will be granted.
Oct 7 2004	Appellant's opening brief filed   (86,113 words; 377 pp.)
Oct 28 2004	Request for extension of time filed   to file respondent's brief. (1st request)
Nov 3 2004	Extension of time granted   to 1/7/2005 to file respondent's brief.
Dec 21 2004	Request for extension of time filed   to file respondent's brief. (2nd request)
Dec 30 2004	Extension of time granted   to 3/8/2005 to file respondent's brief. After that date, only one further extension totaling about 70 additional days will be granted. Extension is granted based upon Deputy Attorney General Stephanie C. Brenan's representation that she anticipates filing that brief by 5/16/2005.
Feb 28 2005	Request for extension of time filed   to file respondent's brief. (3rd request)
Mar 3 2005	Extension of time granted   to 5/9/2005 to file respondent's brief. After that date, only one further extension totaling about ten additional days will be granted. Extension is granted based upon Deputy Attorney General Stephanie C. Brenan's representation that she anticipates filing that brief by 5/16/2005.
May 9 2005	Respondent's brief filed   (69820 words; 225 pp.)
May 24 2005	Request for extension of time filed   to file appellant's reply brief. (1st request)
May 26 2005	Extension of time granted   to 7/29/2005 to file appellant's reply brief.
Jul 25 2005	Request for extension of time filed   to file appellant's reply brief. (2nd request)
Jul 26 2005	Extension of time granted   to 9/28/2005 to file appellant's reply brief. After that date, only two further extensions totaling about 90 additional days are contemplated. Extension is granted based upon Senior Deputy State Public Defender Evan Young's representation that she anticipates filing that brief by 12/30/2005.
Sep 22 2005	Request for extension of time filed   to file appellant's reply brief. (3rd request)
Sep 29 2005	Extension of time granted   to 11/28/2005 to file appellant's reply brief. After that date, only one further extension totaling about 30 additional days will be granted. Extension is granted based upon Senior Deputy State Public Defender Evan Young's representation that she anticipates filing that breif by 12/30/2005.
Nov 21 2005	Request for extension of time filed   to file appellant's reply brief. (4th request)
Nov 29 2005	Extension of time granted   to 12/30/2005 to file the appellant's reply brief. After that date, no further extension will be granted. Extension is granted based upon Senior Deputy State Public Defender Evan Young's representation that she anticipates filing that brief by 12/30/2005.
Dec 30 2005	Appellant's reply brief filed   (19,358 words; 81 pp.)
Jun 22 2007	Exhibit(s) lodged   People's exhibit, no. 47.
Jul 6 2007	Oral argument letter sent   advising counsel that the court could schedule this case for argument as early as the September calendar, to be held the week of September 3, 2007, 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.
Jul 10 2007	Received:   letter from Senior Deputy State Public Defender Evan Young requesting that the court place the case on its calendar no earlier than November, 2007.
Jul 20 2007	Letter sent to:   Senior Deputy SPD Evan Young advising that the court has considered her letter of July 10, 2007, requesting that this case be set for oral argument no earlier than November 2007. Counsel advised, however, that oral argument may be scheduled for either the September or October 2007 calendar session.
Sep 5 2007	Case ordered on calendar   to be argued on October 2, 2007, in Santa Rosa, at 9:00 a.m. special session at the Sonoma Country Day School, 4400 Day School Place, Santa Rosa
Sep 7 2007	Received:   appearance sheet from Deputy SPD Evan Young, indicating 30 minutes for oral argument for appellant.
Sep 13 2007	Argument rescheduled   to be argued in the afternoon session: on October 2, 2007, in Santa Rosa, at 1:30 p.m.
Sep 17 2007	Filed:   respondent's focus issue letter, dated September 14, 2007, including a request for 45 minutes for oral argument.
Sep 17 2007	Received:   appearance sheet from Deputy AG, Stephanie Brenan, indicating 45 minutes for oral argument for respondent.
Sep 18 2007	Request for Extended Media coverage Filed   By The California Channel.
Sep 24 2007	Filed:   appellant's focus issue letter, dated September 19, 2007.
Sep 25 2007	Request for Extended Media coverage Filed   by The Santa Rosa Press Democrat
Sep 25 2007	Received:   Letter from respondent dated September 20, 2007; indicating additional authorities for oral argument.
Sep 25 2007	Received:   letter from State P.D. dated September 25, 2007; indicating additional authorities for oral argument.
Sep 28 2007	Request for Extended Media coverage Granted   The request for extended media coverage, filed by The Santa Rosa Press Democrat on September 25, 2007, is granted, subject to the conditions set forth in rule 1.150, California Rules of Court.
Oct 2 2007	Cause argued and submitted
Dec 6 2007	Opinion filed: Judgment affirmed in full   Majority Opinion by Chin, J. ----- joined by George, C.J., Kennard, Baxter, Corrigan, JJ. Concurring Opinion by Werdegar, J. Concurring and Dissenting Opinion by Moreno, J.
Dec 7 2007	Order appointing Habeas Corpus Resource Center filed   Upon request of appellant for appointment of counsel, the Habeas Corpus Resource Center is hereby appointed to represent appellant Douglas Oliver Kelly 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 this court's delay in appointing habeas corpus/executive clemency counsel on behalf of appellant Douglas Oliver Kelly.
Dec 21 2007	Rehearing petition filed   by appellant (780 words; 4pp)
Dec 21 2007	Request for modification of opinion filed   by the California Public Defender's Association dated December 21, 2007.
Dec 31 2007	Time extended to consider modification or rehearing   The time for granting or denying rehearing in the above-entitled case is hereby extended to and including March 5, 2008 or the date upon which rehearing is either granted or denied, whichever occurs first.
Jan 4 2008	Filed letter from:   Law Offices of Los Angeles County Public Defender, dated January 3, 2008. In support of appellant's petition for rehearing.
Feb 20 2008	Rehearing denied   The request for modification of the opinion is granted. The petition for rehearing is denied.
Feb 20 2008	Opinion modified - no change in judgment
Feb 20 2008	Remittitur issued (AA)
Feb 21 2008	Exhibit(s) returned   to our Los Angeles office for return to superior court.
Feb 21 2008	Related habeas corpus petition filed (post-judgment)   no. S161036.
Feb 29 2008	Received:   receipt for remittitur.
Mar 7 2008	Received:   received acknowledgment of receipt of exhibits from superior court.
May 21 2008	Received:   copy of appellant's petition for a writ of certiorari, motion and declaration in support of motion for leave to proceed in forma pauperis and certificate of service sent to U.S.S.C., on May 20, 2008.
May 29 2008	Received:   letter from U.S.S.C., dated May 23, 2008, advising that petition for writ of certiorari was filed on May 20, 2008; No. 07-11073.
Jul 3 2008	Motion filed (AA)   by HCRC, "Motion for an Order Allowing Counsel to Inspect and Copy Sealed and Confidential Documents in the Record on Appeal"
Jul 30 2008	Motion for access to sealed record granted   Douglas Oliver Kelly's "Motion for an Order Allowing Counsel to Inspect and Copy Sealed and Confidential Documents in the Record on Appeal," filed on July 3, 2008, is granted. The Habeas Corpus Resource Center is granted access to the following sealed materials contained in the record in People v. Kelly (S049973): 1. Order for Appointment of Expert (1 CT 342); 2. Declaration and Order Re Fees for All Court Appointments (1 CT 416-420); 3. Declaration and Order Re Fees for All Court Appointments (1 CT 582-586); 4. Request for Authorization to Incur Expenses for Ancillary Defense Services (2 CT Supp II 490-494); 5. Notice of Motion to Appoint Expert and Order (2 CT Supp II 495-496); 6. Final Accounting for Ancillary Defense Services and Order for Reimbursement (2 CT Supp II 497-501); 7. Sealed Reporter's Transcripts of In Camera Hearings (RT 31-33, 124-126). Counsel must supply the personnel and equipment necessary to undertake the examination and copying of the records, which must occur on the premises of the court. Unless otherwise ordered by this court, the sealed documents described in this order are to remain under seal, and to the extent the parties quote, disclose, or describe these materials in any court papers, those papers must be filed or lodged under seal. George, C.J., was absent and did not participate.
Aug 18 2008	Received:   copy of appellant's "Reply to Opposition to Petition for a Writ of Certiorari" sent to the U.S.S.C. on August 15, 2008.
Nov 10 2008	Certiorari denied by U.S. Supreme Court   Justice Souter would grant the petition for a writ of certiorari. Justice Stevens filed a statement respecting the denial of the petition for writ of certiorari. Justice Breyer filed an opinion dissenting from the denial of the petition for writ of certiorari.

Briefs
Oct 7 2004	Appellant's opening brief filed
May 9 2005	Respondent's brief filed
Dec 30 2005	Appellant's reply brief filed

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