Stanford Law School - Robert Crown Law Library

Filed 10/14/09

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S068536
v.
Kern County
RICHARD ALLEN McWHORTER,
Super. Ct. No. 65352A
Defendant and Appellant.

MODIFICATION OF OPINION
THE COURT:

The opinion filed August 6, 2009, and published at 47 Cal.4th 318, is modified as
follows:
At page 367, second full paragraph, delete the first sentence and accompanying
citations reading, “A trial court’s finding that the Kelly foundational requirements have
not been met is reviewed for an abuse of discretion. (People v. Jablonski (2006) 37
Cal.4th 774, 805; People v. Venegas (1998) 18 Cal.4th 47, 93.),” and substitute the
following: “As we earlier observed, Kelly requires as a foundational matter that the
reliability of a new scientific technique be established by a properly qualified expert.
Such expert’s qualifications are subject to review for abuse of discretion. (People v.
Ashmus (1991) 54 Cal.3d, 932, 971.) We conclude on this record that the trial court did
not abuse its discretion in excluding Perle’s expert opinion testimony.”
The modification does not affect the judgment.

---

Automatic appeal from a judgment of death.

Opinion Information

Date:	Citation:	Docket Number:	Category:	Status:	Cross Referenced Cases:
Thu, 10/15/2009	47 Cal. 4th 318, 212 P.3d 692, 97 Cal. Rptr. 3d 412	S068536M	Automatic Appeal	closed; remittitur issued	test 1 test 2

Disposition
Aug 6 2009	Opinion: Affirmed as modified

Dockets
Feb 26 1998	Judgment of death
Mar 10 1998	Filed certified copy of Judgment of Death Rendered   2-26-98.
Mar 10 1998	Penal Code sections 190.6 et seq. apply to this case
May 26 1998	Record certified for completeness
Sep 23 2002	Filed:   appellant's application for appointment of counsel (IFP form).
Sep 24 2002	Order appointing State Public Defender filed   to represent appellant for the direct appeal.
Oct 15 2002	Date trial court delivered record to appellant's counsel   (7,008 pp. record) (see Calif. Rules of Court, rule 39.50(c); the date of delivery is the date of mailing plus five days.)
Oct 15 2002	Received:   notice from superior court of transmittal of 7,008 pp. record to appellant's counsel on 10-10-2002.
Oct 30 2002	Appellant's opening brief letter sent, due:   May 13, 2003.
Nov 22 2002	Counsel's status report received (confidential)   from State P.D.
Jan 17 2003	Counsel's status report received (confidential)   from State P.D.
Mar 13 2003	Received copy of appellant's record correction motion   appellant's request for correction of record, applic. for settled statements, applic. for additional records and request for documentary exhibits. (21 pp.)
Mar 20 2003	Counsel's status report received (confidential)   from State P.D.
May 8 2003	Request for extension of time filed   to file appellant's opening brief. (1st request)
May 13 2003	Extension of time granted   to 7/14/2003 to file appellant's opening brief. The court anticipates that after that date, only four further extensions totaling 240 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.
May 19 2003	Counsel's status report received (confidential)   from State P.D.
Jul 10 2003	Request for extension of time filed   to file appellant's opening brief. (2nd request)
Jul 10 2003	Counsel's status report received (confidential)   from State P.D.
Jul 16 2003	Extension of time granted   to 9-12-2003 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.
Sep 11 2003	Counsel's status report received (confidential)   from State P.D.
Sep 11 2003	Request for extension of time filed   to file appellant's opening brief. (3rd request)
Sep 18 2003	Extension of time granted   to 11/12/2003 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.
Nov 4 2003	Record certified for accuracy
Nov 7 2003	Request for extension of time filed   to file appellant's opening brief. (4th request)
Nov 7 2003	Counsel's status report received (confidential)   from State P.D.
Nov 12 2003	Extension of time granted   to 1/12/2004 to file appellant's opening brief. The court anticipates that after that date, only two further extensions totaling 90 additional days will be granted. Cousnel 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.
Jan 9 2004	Counsel's status report received (confidential)   from State P.D.
Jan 9 2004	Request for extension of time filed   to file appellant's opening brief. (5th request)
Jan 13 2004	Extension of time granted   to 3/12/2004 to file appellant's opening brief. The court anticipates that after that date, only two further extensions totaling 90 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 8 2004	Counsel's status report received (confidential)   from State P.D.
Mar 8 2004	Request for extension of time filed   to file appellant's opening brief. (6th request)
Mar 12 2004	Extension of time granted   to 5/11/2004 to file appellant's opening brief. The court anticipates that after that date, only two further extensions totaling about 120 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.
Apr 13 2004	Record on appeal filed   Clerk's transcript 29 volumes (5818 pp.) and reporter's transcript 52 volumes (5666 pp.), including material under seal; ASCII disks. Clerk's transcript includes 2679 pp. of juror questionnaires.
Apr 13 2004	Letter sent to:   counsel advising that record on appeal, certified for accuracy, was filed this date.
May 6 2004	Counsel's status report received (confidential)   from State P.D.
May 6 2004	Request for extension of time filed   to file appellant's opening brief. (7th request)
May 12 2004	Extension of time granted   to 7/12/2004 to file appellant's opening brief. After that date, only nine further extensions totaling about 500 additional days will be granted. Extension is granted based upon Deputy State Public Defender David S. Adam's representation that he anticipates filing that brief by mid-12/2005.
May 19 2004	Note:   appellant's 8th request for extension of time to file AOB returned to State P.D., unfiled; it is premature.
May 19 2004	Counsel's status report received (confidential)   from State P.D.
Jul 7 2004	Counsel's status report received (confidential)   from State P.D.
Jul 8 2004	Request for extension of time filed   to file appellant's opening brief. (8th request)
Jul 15 2004	Extension of time granted   to 9/10/2004 to file appellant's opening brief. After that date, only eight further extensions totaling about 440 additional days will be granted. Extension is granted based upon Assistant State Public Defender Jay Colangelo's representation that he anticipates the brief will be filed by mid-12/2005.
Jul 30 2004	Motion to withdraw as counsel filed   Motion by State Public Defender to withdraw as counsel of record for appellant.
Jul 30 2004	Motion for appointment of counsel filed   Application of attorney David S. Adams for appointment as counsel for appellant.
Aug 25 2004	Withdrawal of counsel allowed by order   Good cause appearing, the application of appointed counsel for permission to withdraw as attorney of record for appellant Richard McWhorter, filed July 30, 2004, is granted. The order appointing the State Public Defender as counsel of record for appellant Richard McWhorter, filed September 24, 2002, is hereby vacated. David S. Adams is hereby appointed as counsel of record to represent appellant Richard McWhorter for the direct appeal in the above automatic appeal now pending in this court.
Sep 7 2004	Request for extension of time filed   to file appellant's opening brief. (9th request)
Sep 8 2004	Counsel's status report received (confidential)   from atty Adams.
Sep 9 2004	Extension of time granted   to 11/9/2004 to file appellant's opening brief. After that date, only seven further extensions totaling about 380 additional days will be granted. Extension is granted based upon counsel David S. Adams's representation that he anticipates filing that brief by mid-12/2005.
Nov 5 2004	Request for extension of time filed   to file appellant's opening brief. (10th request)
Nov 5 2004	Counsel's status report received (confidential)   from atty Adams.
Nov 10 2004	Extension of time granted   to 1/10/2005 to file appellant's opening brief. After that date, only six further extensions totaling about 320 additional days will be granted. Extension is granted based upon counsel David S. Adams's representation that he anticipates filing that brief by mid-12/2005.
Nov 17 2004	Compensation awarded counsel   Atty Adams
Jan 6 2005	Counsel's status report received (confidential)   from atty Adams.
Jan 6 2005	Request for extension of time filed   to file appellant's opening brief. (11th request)
Jan 10 2005	Extension of time granted   to 3/11/2005 to file appellant's opening brief. After that date, only five further extensions totaling about 260 additional days will be granted. Extension is granted based upon counsel David S. Adams's representation that he anticipates filing that brief by 12/2005.
Mar 9 2005	Counsel's status report received (confidential)   from atty Adams.
Mar 9 2005	Request for extension of time filed   to file appellant's opening brief. (12th request)
Mar 14 2005	Extension of time granted   to 5/11/2005 to file appellant's opening brief. After that date, only four further extensions totaling about 200 additional days will be granted. Extension is granted based upon counsel David S. Adams's representation that he anticipates filing that brief by 12/2005.
May 9 2005	Request for extension of time filed   to file appellant's opening brief. (13th request)
May 9 2005	Counsel's status report received (confidential)   from atty Adams.
May 11 2005	Extension of time granted   to 7/11/2005 to file appellant's opening brief. After that date, only three further extensions totaling about 140 additional days will be granted. Extension is granted based upon counsel David S. Adams's representation that he anticipates filing that brief by 12/2005.
Jul 8 2005	Request for extension of time filed   to file AOB. (14th request)
Jul 8 2005	Counsel's status report received (confidential)   from atty Adams.
Jul 12 2005	Extension of time granted   to 9-9-2005 to file AOB. After that date, only two further extensions totaling about 80 additional days will be granted. Extension granted based upon counsel David S. Adams's representation that he anticipates filing the brief by December 2005.
Sep 6 2005	Counsel's status report received (confidential)   from atty Adams.
Sep 6 2005	Request for extension of time filed   to file appellant's opening brief. (15th request)
Sep 13 2005	Extension of time granted   to 11/8/2005 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 David S. Adams's representation that he anticipates filing that brief by December 2005.
Sep 23 2005	Counsel appointment order filed   appointing Phyllis M. Quatman to represent appellant for habeas corpus/executive clemency proceedings.
Oct 7 2005	Compensation awarded counsel   Atty Adams
Nov 7 2005	Counsel's status report received (confidential)   from atty Adams.
Nov 7 2005	Request for extension of time filed   to file appellant's opening brief. (16th request)
Nov 14 2005	Extension of time granted   to 1-6-06 to file appellant's opening brief. After that date, no further extension is contemplated. Extension is granted based upon counsel David S. Adams's representation that he anticipates that brief by 1-6-06.
Dec 1 2005	Counsel's status report received (confidential)   from atty Adams.
Dec 14 2005	Compensation awarded counsel   Atty Quatman
Dec 27 2005	Appellant's opening brief filed   (91,866 words; 319 pp. - exlcuding attached appendices)
Dec 27 2005	Respondent's brief letter sent; due:   May 11, 2006
Jan 9 2006	Compensation awarded counsel   Atty Adams
Jan 9 2006	Compensation awarded counsel   Atty Quatman
Feb 14 2006	Counsel's status report received (confidential)   from atty Quatman.
Apr 14 2006	Counsel's status report received (confidential)   from atty Quatman.
May 4 2006	Request for extension of time filed   to file respondent's brief. (1st request)
May 9 2006	Extension of time granted   to July 10, 2006 to file respondent's brief.
Jul 3 2006	Request for extension of time filed   to file respondent's brief. (2nd request)
Jul 7 2006	Extension of time granted   to August 9, 2006 to file respondent's brief. Extension is granted based upon Deputy Attorney General Brook Bennigson's representation that he anticipates filing that brief by August 9, 2006. After that date, no further extension is contemplated.
Aug 3 2006	Counsel's status report received (confidential)   from atty Quatman.
Aug 4 2006	Compensation awarded counsel   Atty Quatman
Aug 9 2006	Respondent's brief filed   (95,028 words; 292 pp.)
Aug 9 2006	Note:   Appellant's reply brief due October 10, 2006. (rule 36(c)(1)(D))
Aug 11 2006	Received:   letter from DAG Brook Benningson regarding insertion of page "v" of the Table of Contents in support of Respondent's Brief.
Oct 10 2006	Request for extension of time filed   to file appellant's reply brief. (1st request)
Oct 13 2006	Extension of time granted   On application of appellant and good cause appearing, it is ordered that the time to serve and file appellant's reply brief is extended to and including December 11, 2006.
Oct 17 2006	Compensation awarded counsel   Atty Quatman
Dec 11 2006	Request for extension of time filed   to file appellant's reply brief. (2nd request)
Dec 11 2006	Letter sent to:   attorney Phyllis Quatman requesting status report.
Dec 14 2006	Extension of time granted   to February 9, 2007 to file appellant's reply brief. After that date, only one further extension totaling about 64 additional days is contemplated. Extension is granted based upon counsel David S. Adams's representation that he anticipates filing that brief by April 15, 2007.
Jan 11 2007	Counsel's status report received (confidential)   from atty Quatman.
Jan 16 2007	Received:   amended declaration of service of counsel's status report (confidential).
Feb 5 2007	Request for extension of time filed   to file appellant's reply brief. (3rd request)
Feb 7 2007	Change of contact information filed for:   applt counsel David S. Adams.
Feb 7 2007	Extension of time granted   to April 16, 2007 to file appellant's reply brief. After that date, no further extension is contemplated. Extension is granted based upon counsel David S. Adam's representation that he anticipates filing that brief by April 16, 2007.
Mar 20 2007	Counsel's status report received (confidential)   from atty Quatman.
Apr 16 2007	Request for extension of time filed   to file appellant's reply brief. (4th request)
Apr 23 2007	Extension of time granted   to May 7, 2007 to file appellant's reply brief. Extension is granted based upon counsel David S. Adams's representation that he anticipates filing that brief by May 7, 2007. After that date, no further extension will be granted.
May 7 2007	Appellant's reply brief filed   (20,058 words; 96 pp.)
May 24 2007	Compensation awarded counsel   Atty Adams
Jul 2 2007	Counsel's status report received (confidential)   from atty Quatman.
Aug 6 2007	Filed:   Confidential declaration from atty Quatman.
Dec 3 2007	Motion to withdraw as counsel filed   by Atty Quatman.
Dec 19 2007	Motion denied   The "Motion to Withdraw as Counsel of Record and Notice of Conflict of Interest," filed on December 3, 2007, is denied.
Feb 26 2008	Motion to withdraw as counsel filed   attorney Phyllis Quatman's second motion to withdraw as (habeas corpus/executive clemency) counsel.
Feb 26 2008	Motion to file document under seal filed (AA)   attorney Quatman's request to file under seal declaration supporting her second motion to withdraw as counsel.
Feb 26 2008	Lodged:   conditionally under seal, declaration in support of motion to withdraw as counsel. (confidential)
Apr 9 2008	Motion to file document under seal granted   Good cause appearing, appointed habeas corpus/executive clemency counsel Phyllis M. Quatman's "Request to File Under Seal Declaration Supporting Second Motion to Withdraw as Counsel of Record" for appellant Richard McWhorter, filed February 26, 2008, is granted. The court expressly finds that the factors enumerated in California Rules of Court, rule 2.550(d), support granting the motion to file under seal.
Apr 9 2008	Order filed   In conjunction with the order filed this day permitting Phyllis M. Quatman to withdraw as appointed habeas corpus/executive clemency counsel of record for appellant Richard McWhorter with regard to the above-referenced automatic appeal now pending in this court, Quatman is ordered to reimburse this court the sum of $43,560, subject to her ability to demonstrate to the court that she 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 Cal. Supreme Ct., guideline 11 ["Court Action Upon Nonperformance of Work, and Reimbursement of Fees Upon Authorized Withdrawal of Appointed Counsel"], subpt. B.)
Apr 9 2008	Withdrawal of counsel allowed by order   Good cause appearing, appointed habeas corpus/executive clemency counsel's "Second Motion to Withdraw as Counsel of Record" on behalf of appellant Richard McWhorter, filed February 26, 2008, is granted. The order appointing Phyllis M. Quatman as counsel of record for appellant Richard McWhorter, filed September 23, 2005, 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 Richard McWhorter. Quatman is hereby directed to deliver to Executive Director Millman, within 30 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 she has obtained from appellant or from his appellate or trial counsel, paralegals, experts and investigators, or from any other source.
Mar 16 2009	Oral argument letter sent   advising counsel that the court could schedule this case for argument as early as the May calendars, to be held the week of May 4 and the week of May 25, 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.
Apr 3 2009	Received:   letter from Deputy Attorney General, Brook Bennigson, dated April 2, 2009, regarding the scheduling of oral argument.
Apr 22 2009	Case ordered on calendar   to be argued Thursday, May 28, 2009, at 1:30 p.m., in San Francisco
May 1 2009	Filed:   respondent's focus issues letter, dated May 1, 2009.
May 8 2009	Received:   appearance sheet from David S. Adams, indicating 45 minutes for oral argument for appellant.
May 11 2009	Received:   appearance sheet from Deputy Attorney General Brook Bennigson, indicating 45 minutes for oral argument for respondent.
May 11 2009	Filed:   appellant's focus issues letter, dated May 8, 2009.
May 15 2009	Filed:   appellant's amended declaration of service for focus issues letter dated, May 8, 2009.
May 20 2009	Withdrawal of counsel allowed by order   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 Richard McWhorter, filed October 3, 2008, is hereby vacated. Michael W. Clough is hereby appointed to represent appellant Richard McWhorter 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 Phyllis M. Quatman's declaration, in support of her motion to withdraw, to the effect that she was unable to discharge her duty to investigate and, if appropriate, present a habeas corpus petition on behalf of appellant Richard McWhorter, and this court's delay in appointing replacement habeas corpus/executive clemency counsel. George, C.J., was absent and did not participate.
May 28 2009	Cause argued and submitted
Jun 11 2009	Compensation awarded counsel   Atty Clough
Jul 20 2009	Counsel's status report received (confidential) Appellant: McWhorter, RichardAttorney: Michael William Clough
Jul 22 2009	Compensation awarded counsel   Atty Adams
Jul 29 2009	Order filed   On the court's own motion, Phyllis Moore Quatman, former appointed habeas corpus counsel of record for condemned inmate Richard McWhorter, is hereby referred to the State Bar of California for appropriate disciplinary proceedings in light of Quatman's failure to comply, in whole or in part, with the court's order of April 9, 2008, directing her to reimburse this court the sum of $43,560 in connection with the separate order of that same date vacating her capital-related habeas corpus appointment on behalf of condemned inmate McWhorter. (See Guidelines for Fixed Fee Appointments, on Optional Basis, to Automatic Appeals and Related Habeas Corpus Proceedings in Cal. Supreme Ct., guideline 11 [Court Action Upon Nonperformance of Work, and Reimbursement of Fees Upon Authorized Withdrawal of Appointed Counsel], subpt. B.) Corrigan, J., was absent and did not participate.
Jul 29 2009	Letter sent to:   the State Bar of California regarding referral of Phyllis Moore Quatman.
Aug 5 2009	Notice of forthcoming opinion posted   To be filed Thursday, August 6, 2009 @ 10am.
Aug 6 2009	Opinion filed: Judgment affirmed as modified   The judgment is modified to reflect the striking of one multiple-murder special circumstance and the parole revocation restitution fine imposed pursuant to section 1202.45. In all other respects the judgment is affirmed. Majority Opinion by Baxter, J. -----joined by George, C.J., Kennard, Werdegar, Chin, Moreno and Corrigan, JJ.
Aug 24 2009	Rehearing petition filed Appellant: McWhorter, RichardAttorney: David S. Adams   (13 pp.) Timely filed pursuant to Cal. Rules of Court, rule 8.25(b)
Aug 25 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 November 4, 2009, or the date upon which rehearing is either granted or denied, whichever occurs first.
Aug 28 2009	Filed:   Certificate of Counsel, Word Count for Petition for Rehearing. (2,685 words)
Sep 8 2009	Application filed   by Jennifer Friedman, Attorney for the California Public Defenders Association, "Application for Leave to File Letter Brief and Letter Brief" (amicus curiae letter)
Sep 10 2009	Order filed   Good cause appearing, the application of the California State Public Defenders Association for leave to file a request for modification of the opinion is granted.
Sep 10 2009	Letter brief filed Information only: California Public Defenders Association   by California Public Defenders Association, dated September 2, 2009, requesting modification of the opinion.
Sep 18 2009	Counsel's status report received (confidential) Appellant: McWhorter, RichardAttorney: Michael William Clough
Oct 14 2009	Rehearing denied; opinion modified
Oct 14 2009	Remittitur issued

Briefs
Dec 27 2005	Appellant's opening brief filed
Aug 9 2006	Respondent's brief filed
May 7 2007	Appellant's reply brief filed

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