People v. Phillips (2000) 22 Cal.4th 226 , 92 Cal.Rptr.2d 58; 991 P.2d 145
THE PEOPLE, Plaintiff and Respondent, v. RICHARD LOUIS ARNOLD PHILLIPS, Defendant and Appellant.
(Superior Court of Madera County, No. 4852, W. J. Harpham, Judge. fn. * )
(Opinion by Chin, J., expressing the unanimous view of the court.)
COUNSEL
Donald J. Horvath, under appointment by the Supreme Court, for Defendant and Appellant.
Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson and David P. Druliner, Chief Assistant Attorneys General, Robert R. Anderson, Assistant Attorney General, William G. Prahl, Michael J. Weinberger, Thomas Y. Shigemoto, Harry Joseph Colombo and R. Todd Marshall, Deputy Attorneys General, for Plaintiff and Respondent. [22 Cal.4th 229]
OPINION
CHIN, J.-
This case, arising out of the 1977 death penalty law, is before us for the second time. In 1980, a jury found defendant guilty of two counts of [22 Cal.4th 230] robbery (Pen. Code, § 211), fn. 1 one count of attempted murder (§§ 187, 664), and one count of first degree murder (§ 187) with the special circumstance of murder in the commission of a robbery (former § 190.2, subd. (c)(3)(i)). The jury found true allegations that defendant personally used a firearm in the commission of one of the robberies, the attempted murder, and the murder. It returned a verdict of death, and the court sentenced him accordingly. In 1985, we affirmed the judgment of guilt, including the special-circumstance finding, but reversed the judgment of death. (People v. Phillips (1985) 41 Cal.3d 29 [222 Cal.Rptr. 127, 711 P.2d 423] (Phillips I).)
At retrial, the jury again returned a verdict of death. The trial court denied the automatic motion to modify the verdict (§ 190.4, subd. (e)) and entered a judgment of death. This appeal, like the earlier one, is automatic. (§ 1239.)
I. Facts
A. Prosecution Evidence
The prosecution's case-in-chief at retrial presented essentially the same evidence regarding the facts of the charged crimes as the first. We review those facts briefly. (See Phillips I, supra, 41 Cal.3d at pp. 39-42.)
Defendant became acquainted with Bruce Bartulis (the robbery and murder victim) and Ronald Rose (the robbery and attempted murder victim) in September 1977. Rose and Bartulis were in the construction business. In November 1977, defendant offered to allow Rose and Bartulis to participate in a large cocaine purchase if they invested $25,000. They accepted, and Rose gave defendant $10,000 as partial payment. After that, defendant urged them several times to pay the rest of the money. Rose gave him another $1,500 but eventually said they could not deliver any more money. Rose asked defendant to use the amount they had already supplied or return it. Defendant agreed to use the money and take a promissory note for the balance of the $25,000.
In late November or early December 1977, defendant offered to sell Rose and Bartulis some stolen insulation for their business. They agreed to the purchase. On December 7, 1977, defendant told Rose the insulation was available to be picked up in Fresno. He told Rose they should meet him that evening at a gasoline station, and he should bring as much cash as he could. Rose obtained approximately $5,000, mostly in $100 bills, and he and Bartulis drove to Fresno in Rose's 1977 Ranchero. Rose had an unloaded .44 magnum pistol and some ammunition in the vehicle. The two checked into a [22 Cal.4th 231] motel, then went to the gasoline station. Defendant arrived about half an hour later in a Toyota, accompanied by his girlfriend, Sharon Colman. Defendant told the two to follow him to another destination, and the group drove away in their separate vehicles. Bartulis drove the Ranchero. Along the way, they stopped briefly for defendant to use a rest room. During the stop, defendant walked to the Ranchero and borrowed a book of matches. The four continued their trip.
Eventually, defendant drove off the freeway, and the vehicles stopped in a vacant area off the road. Colman observed defendant get out of the car, converse with the two in the Ranchero, then return to the Toyota. The conversation did not seem angry. Defendant again got out of the Toyota and walked to the driver's side of the Ranchero. He leaned inside the driver's window. Suddenly, Colman heard gunshots. She saw gunflashes and a gun in defendant's hand and heard Bartulis moaning. Defendant silenced him by striking him over the head with the gun. Defendant leaned further into the vehicle, seemed to look for something, then emerged with a wallet. He walked to the other side of the Ranchero and took Rose's wallet. He returned to the Toyota and handed Colman two wallets and two handguns, the one he had used in the shooting and another. He told Colman the other gun had been near Rose. Defendant had Colman open the trunk of his car, and he took out a can of gasoline. He poured the gasoline over the Ranchero and its occupants and set them on fire.
Rose was still alive. He had "tried to act like [he] was not [conscious] or aware what's going on" after being shot, even while defendant poured the gasoline over him. He did not actually see defendant shoot him or pour the gasoline, but he recalled that defendant was alone at the window on the driver's side, that the shots came from that direction, and that he heard a male voice close to him while he was being searched. When he was set on fire, Rose jumped out of the Ranchero and tried to shed his burning clothing. He got his jacket off. Defendant saw Rose running away. Stating to Colman that Rose was not dead, defendant drove the Toyota at Rose and hit him, cracking the windshield. He and Colman drove away.
Two Madera County Deputy Sheriffs observed the fire at 11:53 p.m. and rescued Rose by covering him with a sheet and extinguishing the fire. Rose survived despite suffering five gunshot wounds and burns over some two-thirds of his body. Bartulis was dead in the Ranchero with a bullet wound through the heart that appeared to be caused by a large-caliber bullet. The deputies found a jacket containing a roll of badly burned currency. At least two of the bills were $100 denomination.
Defendant and Colman drove to Sacramento. The two wallets defendant took from the Ranchero contained only $100 or a little more. Defendant said [22 Cal.4th 232] that he could not find the money Rose was supposed to have had with him. He commented that "the caliber of his gun was too big because he was too close." He also said "that he had seen [Rose] leaning forward towards the gun and thought that he was going to cross him on their deal." In Sacramento, the pair went to defendant's mother's home. Defendant told his mother he had been to a dance and on the way home some gravel had cracked his windshield.
Eventually, defendant and Colman went to Salt Lake City, where he was arrested on March 17, 1978. While still at large, he had a number of tape-recorded telephone conversations with Richard Graybill, Colman's former boyfriend. In one of the conversations, defendant said: "[A] .45 sure did put a big hole right through him. I mean, it didn't fuck around. It went right through him because I could hear it go through the body of the car after it went through him."
As aggravating evidence, the prosecution also presented a letter defendant wrote while incarcerated in Salt Lake City that appeared to solicit criminal acts against Graybill, Colman, Rose, and defendant's mother, who were to testify against him.
B. Defense Evidence
At the first trial, defendant presented an alibi defense. His theory was "that Colman and Rose and defendant's erstwhile friend, Richard Graybill (who aided police in their efforts to apprehend defendant) were involved in a conspiracy to fix defendant with the blame for the shootings, which were purportedly committed by Graybill and Colman. Rose's participation in the conspiracy, it was suggested in argument, might be explained by a desire to avoid the necessity of paying off the $25,000 note or to avoid criminal liability for shooting Bartulis himself." (Phillips I, supra, 41 Cal.3d at p. 42, fn. omitted.) Defendant testified that he loaned the Toyota to Graybill in Sacramento the night of the shooting, and that Graybill returned it with a damaged windshield the next morning without explanation.
At the penalty retrial, defendant instead sought to portray the incident as a spontaneous shootout following a business deal gone awry rather than a preplanned, calculated robbery murder. He presented witnesses regarding the investigation of the physical evidence, Colman's veracity, Rose's possession of a firearm, Rose's prior statements, and the possible involvement of others in the transactions among defendant, Rose, and Bartulis. Defendant did not testify.
Defendant also presented mitigating character evidence, much of it about his behavior while on death row. An attorney testified that he had used [22 Cal.4th 233] defendant in a different capital trial as an expert witness on the prison system, and he found defendant very helpful. Defendant's conduct was "exemplary." Some correctional officers testified about his good behavior. One time he warned an officer about a plan to "hit" an officer. A few days later, an officer was in fact stabbed to death. Defendant's son-in-law testified that defendant had assisted him in starting his business and had developed a "very nice relationship" with defendant's granddaughter. He testified that defendant's death would have a "strong" impact on him. A man who employed defendant in the 1970's testified about his good qualities. Ministers and others who worked in the prison testified about his religious beliefs and activities, beneficial effect on other inmates, and good character. One witness testified he was a leader among death row inmates and was good with children visiting death row. He "loves kids and they were attracted to him." Another testified that defendant is "a peaceful person and he creates peace" and "a spirit of joy." His execution would "devastate" them.
II. Discussion
A. Dismissing a Prospective Juror for Cause
[1] Defendant contends the trial court erred in excusing one prospective juror for cause. "A prospective juror may be excused for cause if that juror's views on the death penalty 'would "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." ' [Citations.] ... On review, if the juror's statements are equivocal or conflicting, the trial court's determination of the juror's state of mind is binding. If there is no inconsistency, we will uphold the court's ruling if it is supported by substantial evidence." (People v. Carpenter (1997) 15 Cal.4th 312, 357 [63 Cal.Rptr.2d 1, 935 P.2d 708].)
The statements of the prospective juror in question were both conflicting and equivocal. In a juror questionnaire, he made several equivocal responses, but he also stated, "I will not vote to put any one to death." During voir dire, when asked about this statement, he said, "I'm trying to get out of it. No, I mean I would do the right thing if I was put on a jury. I would do what the law says and ... there's just so much a parameter you are going with." He made a number of other equivocal and contradictory responses, but ultimately responded, "It would be hard," when asked whether he "could ever personally cast your vote to put him to death." The prosecutor challenged the juror for cause. The court had "a lot of mixed feelings about him." It could not "tell ... whether he's lying and whether he isn't, really." It granted the motion: "It's just that this man is too far out. Maybe your [defense counsel's] description is correct, he's a kind of a philosophical [H]amlet. But whatever it is he's not a reliable one." [22 Cal.4th 234]
Because the prospective juror's statements were equivocal and conflicting, we defer to the trial court's determination. We find no error.
B. Exclusion of Evidence of Prostitution
[2] In Phillips I, defendant argued the court had erred in excluding evidence that Colman was a prostitute and had gone to Fresno at the time of the crimes to engage in prostitution. We disagreed, finding the court had discretion to exclude the evidence under Evidence Code section 352. (Phillips I, supra, 41 Cal.3d at pp. 49-51.) At retrial, defendant again sought to present this evidence and argued new theories why it was admissible. The court again exercised its discretion to exclude the evidence, first before Colman testified, then again when defendant argued that her actual testimony made the evidence more probative. As before, defendant contends the court erred in excluding the evidence.
What we said in Phillips I remains true. "Permitting the defense to elicit testimony from Colman that she engaged in acts of prostitution had an obvious potential for embarrassing or unfairly discrediting her. (Evid. Code, § 765.) The degrading impact of such questions has long been recognized. (See People v. Crandall (1899) 125 Cal. 129, 134 [57 P. 785].) The question faced by the trial court, then, in deciding on the motion in limine, was whether the patent prejudicial impact of permitting such questioning was substantially outweighed by its probative value. (Evid. Code, § 352.)" (Phillips I, supra, 41 Cal.3d at pp. 49-50.)
Defendant argues that differing circumstances and the different theories he proffered at the retrial compelled the court to admit the evidence. We disagree. Prostitution activities might have some slight relevance to a witness's credibility, but we made clear in Phillips I that the court had discretion to exclude the evidence. That Colman was with defendant in Fresno was obviously highly relevant, but her occupation or the reason she was in Fresno was at most marginally relevant. Defendant argues the evidence was relevant to whether he had attempted to establish an alibi. The trial court considered these arguments at trial. It carefully exercised its discretion, both at the outset of trial and when defendant raised the issue again during Colman's actual testimony. At the second trial as well as the first, the court acted within its discretion in finding that the highly prejudicial nature of this evidence outweighed any probative value.
C. Exclusion of Defense Hearsay Evidence
Tamara Nichols testified for the defense. She was Richard Graybill's girlfriend in late 1977 and was also acquainted with Colman and defendant, [22 Cal.4th 235] whom she knew as "Speed." Defendant sought to have her testify about a statement Graybill, who had died by the time of the retrial, made to her regarding the shooting. The prosecutor objected on hearsay grounds. As an offer of proof, Nichols testified outside the presence of the jury that Graybill left her home around 7:00 p.m. on December 7, 1977, saying "he had some business to take care of." He returned around 2:00 a.m. the next morning, "nervous," "very excited," and "white as a sheet." Speaking "very rapidly," Graybill made the following statement that defendant sought to introduce: "[A] business deal had gone sour. And that there was a shoot-out and that Speed was shooting everything in sight." On cross-examination, Nichols testified that Graybill and defendant were in frequent contact by telephone and in person during that time period.
[3a] Defendant argued the statement was admissible as a spontaneous declaration. The prosecutor responded that there was no indication Graybill was describing what he had personally observed instead of merely repeating what someone else, possibly defendant, had told him. After taking the matter under submission, the court excluded the evidence. It expressed doubt the statement was spontaneous, but based its ruling mainly on the absence of an indication Graybill had personally perceived the events.
Defendant contends the court erred in excluding the evidence. He argues, first, that the statement was admissible under the spontaneous statement exception to the hearsay rule. (Evid. Code, § 1240.) Evidence Code section 1240 provides: "Evidence of a statement is not made inadmissible by the hearsay rule if the statement:
"(a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and
"(b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception." (Italics added.)
[4] The italicized language makes clear that a hearsay statement, even if otherwise spontaneous, is admissible only if it relates to an event the declarant perceived personally. Otherwise, the statement would be hearsay on hearsay and admissible only if each layer of hearsay separately met the requirements of an exception to the hearsay rule. (People v. Arias (1996) 13 Cal.4th 92, 149 [51 Cal.Rptr.2d 770, 913 P.2d 980].) Defendant does not suggest that any statement from an unidentified other source to Graybill would itself qualify as an exception. Thus, assuming Graybill's statement to Nichols was otherwise spontaneous, its admissibility turns on whether he was relating events he saw himself or repeating what he had heard from [22 Cal.4th 236] some other source. As this is a factual question, we will uphold the trial court's determination if it is supported by substantial evidence. (People v. Jones (1984) 155 Cal.App.3d 653, 660 [202 Cal.Rptr. 289].) We review for abuse of discretion the ultimate decision whether to admit the evidence. (Ibid.; see also People v. Raley (1992) 2 Cal.4th 870, 894 [8 Cal.Rptr.2d 678, 830 P.2d 712]; People v. Poggi (1988) 45 Cal.3d 306, 318 [246 Cal.Rptr. 886, 753 P.2d 1082].)
A similar question arose in Ungefug v. D'Ambrosia (1967) 250 Cal.App.2d 61 [58 Cal.Rptr. 223], which involved a fatal automobile accident. There, the trial court admitted as a spontaneous statement an ambulance driver's testimony that he had heard someone say "the victim had been hit twice, once by another car that failed to stop." (Id. at p. 64.) The Court of Appeal found the court erred. "It must ... appear 'in some way, at least, and with some degree of persuasive force' that the declarant was a witness to the event to which his utterance relates. [Citation.] Although this does not require direct proof that the declarant actually witnessed the event and a persuasive inference that he did is sufficient, the fact that the declarant was a percipient witness should not be purely a matter of speculation or conjecture. [Citations.]" (Id. at p. 68.) The court found "the inference, if any, that the declarant actually witnessed the accident is not persuasive in the instant case," partly because there was "no evidence that there were eyewitnesses to the accident or that there were others in the immediate vicinity of the scene of its occurrence." (Ibid.)
[3b] The court acted within its discretion in this case. Graybill's statement to Nichols did not indicate he had personally observed the events. There was virtually "no evidence that there were eyewitnesses to the [crime] or that there were others in the immediate vicinity of the scene of its occurrence" (Ungefug v. D'Ambrosia, supra, "250 Cal.App.2d at p. 68) other than the occupants of the two vehicles, i.e., other than Rose, Colman, and defendant. Rose and Colman both testified there was no third vehicle at the scene. The only contrary evidence was that several days after the crime, Rose nodded his head affirmatively when asked whether another vehicle was present. However, Rose was badly hurt and heavily sedated at the time and gave a number of incorrect responses. He testified that he "could have said anything during those days."
Defendant argues that Nichols's testimony supports the inference that Graybill was personally present during the shooting. She testified that, shortly before the shooting, Graybill left, telling her he had some "business to take care of." She also said that in November 1977, she overheard discussions involving Graybill "about some building supplies," that he "was [22 Cal.4th 237] involved in girls, some prostitution that was going on," and she heard some "mention about drugs." She recalled some "mention of a couple of building contractors from the coast that they were going to supply some ... building materials to." It "seem[ed]" to her "it had to do with insulation," although she was not sure. Graybill "mentioned" that defendant was involved and said "vaguely that there was a meeting set up and that they were going to supply the building materials at that meeting." In light of the uncontradicted testimony of Colman and Rose that no third vehicle was at the scene, these comments did not compel the trial court to conclude that the "business" Graybill had the night of the crime was the transaction involving Bartulis or Rose (rather than, for example, prostitution or drugs) or to find a "persuasive inference" (Ungefug v. D'Ambrosia, supra, "250 Cal.App.2d at p. 68) that Graybill had somehow witnessed the crime. Defendant also argues that Nichols's testimony about Graybill's demeanor shows the events greatly affected him, indicating that he personally observed them. However, even hearing of these events involving persons he knew could have affected Graybill greatly.
The evidence supports the court's finding that Graybill could have been repeating what he had heard from someone else such as defendant himself. Colman testified that defendant told her to state falsely that there had been a "shootout," and that, after the crime, she and defendant stopped to wash blood from the windshield and to get gas. No one asked her at trial whether defendant made a telephone call during this stop. Moreover, as the Attorney General notes, it is hard to believe that an actual observer of the events would talk about the shooting without even mentioning the fire and the spectacle of a flaming Rose appearing to rise from the dead, only to be hit by defendant's car. Because the court properly excluded the evidence, we need not decide whether the statement otherwise qualified under Evidence Code section 1240 as a spontaneous statement.
Defendant argues the evidence was also admissible as a statement against Graybill's penal interest under Evidence Code section 1230. The statement was against defendant's penal interest, but not Graybill's. Defendant argues it was against Graybill's penal interest because "it put him at the scene of the shooting." As discussed above, it put him at the scene only if he was relating what he saw rather than what someone told him. Moreover, mere presence at a crime scene is not a crime. The evidence was no more admissible under this exception than under the spontaneous statement exception.
[5] Defendant also argues that, even if the court properly excluded the statement under California law, its exclusion violated his rights to due process and to present mitigating evidence under the United States Constitution. (See Skipper v. South Carolina (1986) 476 U.S. 1, 4 [106 S.Ct. 1669, [22 Cal.4th 238] 1670, 90 L.Ed.2d 1]; Green v. Georgia (1979) 442 U.S. 95 [99 S.Ct. 2150, 60 L.Ed.2d 738].) We disagree. "[N]either this court nor the high court has suggested that the rule allowing all relevant mitigating evidence has abrogated the California Evidence Code." (People v. Edwards (1991) 54 Cal.3d 787, 837 [1 Cal.Rptr.2d 696, 819 P.2d 436].) "As a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused's right to present a defense." (People v. Hall (1986) 41 Cal.3d 826, 834 [226 Cal.Rptr. 112, 718 P.2d 99].) Exclusion of hearsay testimony at a penalty phase may violate a defendant's due process rights if the excluded testimony is highly relevant to an issue critical to punishment and substantial reasons exist to assume the evidence is reliable. (People v. Kaurish (1990) 52 Cal.3d 648, 704 [276 Cal.Rptr. 788, 802 P.2d 278].) Defendant contends the evidence was relevant to the critical issue whether the shooting of Rose and Bartulis was a premeditated killing or the end result of a shootout. However, absent some basis for concluding that Graybill related his personal observations, rather than repeated what someone else told him, no substantial reason exists to assume the statement is reliable. Its exclusion violated none of defendant's constitutional rights.
D. Issues Regarding Jury Instructions
Defendant argues the court erred in refusing his request to instruct the jury that it could consider any lingering doubt about his guilt. We disagree. An instruction on lingering doubt was unnecessary in light of the other instructions. (People v. Hines (1997) 15 Cal.4th 997, 1068 [64 Cal.Rptr.2d 594, 938 P.2d 388], and cases cited.) Defendant argues that this conclusion is inconsistent with the decision of Franklin v. Lynaugh (1988) 487 U.S. 164 [108 S.Ct. 2320, 101 L.Ed.2d 155], and that his right to have the jury consider lingering doubt is of little value without a specific instruction. The arguments lack merit. (People v. Johnson (1992) 3 Cal.4th 1183, 1252 [14 Cal.Rptr.2d 702, 842 P.2d 1].)
[6] Defendant also argues the court had a sua sponte duty to instruct the jury that "unanimity is not required for consideration of mitigating factors." We rejected a similar contention in People v. Breaux (1991) 1 Cal.4th 281, 314-315 [3 Cal.Rptr.2d 81, 821 P.2d 585]. Although "a requirement of unanimity improperly limits consideration of mitigating evidence" (id. at p. 314), we held that the court did not have to give a specific instruction in light of the instructions it did give. The same is true here. The instructions neither limited the consideration of mitigating evidence nor suggested "that any particular number of jurors was required to find a mitigating circumstance. The only requirement of unanimity was for the verdict itself." (Id. at p. 315.) [22 Cal.4th 239]
Defendant argues that the actual instructions were unclear. The court instructed that "a juror" may consider evidence of other crimes in aggravation only if "a juror" is satisfied beyond a reasonable doubt that defendant committed them, and that "all jurors" need not agree on this point. It further instructed that "[i]f any juror is convinced beyond a reasonable doubt that such criminal activity occurred, that juror may consider that activity as a factor in this case," but not otherwise. In its concluding instructions, the court told the jury that it was "your duty" to determine which penalty to impose, that "you" shall determine the penalty, that "[y]ou" shall retire and select a foreperson, and that "to make a determination as to the penalty, all 12 jurors must agree." Defendant argues that these instructions created a "substantial probability" the jurors would believe "that they unanimously must agree that a mitigation factor exists before a mitigation factor can be considered." As a whole, however, the instructions were clear. The court also told the jury that the parties "are entitled to the individual opinion of each juror," and that "[e]ach of you must decide the case for yourself ...." In light of this language, and the absence of a suggestion that all jurors had to agree on a mitigating factor before any could consider it, we find no reasonable likelihood the jury misconstrued the instructions as defendant contends. (People v. Clair (1992) 2 Cal.4th 629, 663 [7 Cal.Rptr.2d 564, 828 P.2d 705].)
E. Adequacy of the Appellate Record
Defendant argues that the appellate record does not reflect an alleged hearing in which he appeared without counsel before Mariposa County Superior Court Judge Richard McMechan to make a confidential funds request under section 987.9. fn. 2 Defendant claims Judge McMechan denied the funds request. After an evidentiary hearing, the trial court found the hearing never occurred. We conclude that substantial evidence supports the finding and that, accordingly, the appellate record is complete.
1. Factual Background
After we reversed the original penalty decision, the superior court granted a number of confidential funds requests that defendant, represented by counsel, made. Eventually, the court appointed Attorney Katherine Hart to represent defendant. In July 1989, the court allowed defendant to act as cocounsel. Between that date and the end of trial in late 1991, defendant made, and the court granted, several other confidential funds requests.
The original certified appellate record included two essentially identical documents filed October 9, 1990, and December 21, 1990, in which defendant asked for an in camera hearing to request an unspecified amount of funds [22 Cal.4th 240] for an unspecified purpose. It also included an order filed December 21, 1990, setting a hearing for "January 4, 1990" (sic: obviously meaning 1991); and a minute order dated January 4, 1991, stating that the "hearing re 987 funds will be re-scheduled for a time when another judge can hear the matter." The record contained nothing else regarding the matter; it did not even reflect whether the hearing was ever held.
Defendant moved to augment the record to include the transcript of another hearing. He signed a declaration which stated the following. "About late January 1991, I personally appeared in Madera County Superior Court ... before ... Judge McMechan for a hearing upon my request for Penal Code section 987.9 funds." Hart was not present at the hearing. "Judge McMechan was visibly upset and gave a strong speech" saying that he, defendant, should not have been allowed to proceed "as second counsel." Defendant asked for $25,000 to "investigate, conduct experiments and build an exhibit" to show that the bullet that killed Bartulis could not have been fired from outside the vehicle. The court denied his request "in its entirety."
Eventually, a transcript of a hearing before Judge McMechan on January 30, 1991, was obtained, and we augmented the record to include that transcript. The transcript showed that both Hart and defendant were present at the hearing, and that Hart spoke for the defense. At the beginning of the hearing, Judge McMechan commented, "In this case you wouldn't be co-counsel. There are no co-counsel cases before me today." Judge McMechan granted the funds request for $6,500. Hart then stated "we" would make "further" funds requests in the future. Judge McMechan expressed a willingness to consider these requests. Later he granted three more funds requests without a hearing.
After we filed this transcript, defendant filed a declaration in this court stating that he had appeared at the January 31, 1990, hearing with Hart. He noted the mention at the hearing of possible "further" funds requests and stated, "I subsequently prepared, filed and personally appeared, without co-counsel, to request the amount of $25,000.00 987.9 funds .... These funds were denied." Later, he moved to augment the record to include a transcript of this alleged second hearing. Defendant declared that "the hearing probably occurred in February or March 1991" and certainly before August 1991. He claimed that the January 30, 1991, hearing related solely to his October 9, 1990, funds request, and that the second hearing related to his December 21, 1990, request. He said that Judge McMechan denied this second funds request, and that he, defendant, then "so informed attorney Hart by telephone."
We ordered the superior court to determine whether this alleged second hearing actually occurred. In response, Madera County Superior Court Judge [22 Cal.4th 241] Charles A. Wieland held an evidentiary hearing. Among the witnesses were Judge McMechan, a court reporter, Hart, defendant's appellate counsel, and defendant himself. Judge McMechan remembered the hearing involving Hart but not a second hearing. He did not believe he presided over a hearing involving defendant without Hart, although he would "defer" to the record. He also testified that if defendant had "appeared before me to ask for money and he had co-counsel, or was represented, I would not have proceeded without his counsel present or his co-counsel present ...."
Hart testified that, as "lead counsel [she] controlled the case," but she "worked very closely with" defendant. "[H]ardly a day went by that I did not speak with [defendant] about the case and discuss the case with him." She was the one who made the section 987.9 funds requests, although defendant would generally suggest to her areas of investigation that needed funding. She did not recall authorizing defendant to make a funds request without her. She did recall that defendant once told her he had appeared "at some type of hearing" without her. She had no "specific recollection that it was a funding request." In an earlier declaration, she had said that defendant told her he had appeared without her "for some type of funding request," but at the evidentiary hearing she could not recall the type of hearing. She testified that if defendant had "appeared without me at a hearing, I can't imagine it would have been a hearing where the district attorney would have been present. So I believe it was some type of closed hearing. Therefore, it's most likely it would have been a funding hearing." Defendant testified that the second hearing before Judge McMechan did take place without Hart, and that he informed her that his funds request had been denied.
After the hearing, Judge Wieland prepared and filed a detailed "Confidential Statement of Decision" concluding that the alleged second hearing never occurred. He noted that no significant evidence supported the claim other than defendant's testimony. Judge McMechan had no memory of the hearing. Hart "denie[d] any knowledge of the need for such monies, the written request for funds, or the hearing itself.... One can only wonder why [defendant] would go it alone when requesting three to five times the monies previously requested, why his attorney has no knowledge of these matters despite their almost daily communication and regular sharing of draft pleadings, and why no record exists." Judge Wieland noted that defendant claimed he filed the supporting documents for the request before the actual January 30, 1991, hearing, but no one mentioned that matter at that hearing. "[O]verall," Judge Wieland found, "the evidence is compelling: no hearing was held before Judge McMechan at any time after January 30, 1991 in which [defendant] appeared without co-counsel asking for Penal Code section 987.9 funds ... as he now alleges." [22 Cal.4th 242]
2. The Contentions
[7] Defendant challenges Judge Wieland's finding that the second hearing did not occur. "[S]ettlement of the record is primarily a question of fact to be resolved by the trial court. [Citations.] Once settlement is ordered, the trial court has broad discretion to accept or reject counsel's representations in accordance with its assessment of their credibility." (People v. Clark (1993) 5 Cal.4th 950, 1011 [22 Cal.Rptr.2d 689, 857 P.2d 1099].) The rule that the trial court may assess counsel's credibility obviously applies also to a defendant's own credibility. The evidence supports Judge Wieland's rejection of defendant's belated claim that two hearings occurred before Judge McMechan. No document suggests the second hearing ever occurred; Judge McMechan did not recall it, even though a hearing with an unrepresented capital defendant would have been unusual; even Hart had no memory of it. It is inconceivable that defendant would have done what he said and attended the hearing as he describes without telling Hart or that she, whose funds requests were always granted, would fail to remember a $25,000 request that had been denied. "Substantial evidence supports the trial court's findings." (Ibid.)
Arguing to the contrary, defendant cites Hart's testimony for support. Her testimony, however, supports the court's finding. She said that defendant told her he had attended a hearing in her absence, but she did not recall whether it involved a funds request. She said she believed the hearing did involve a funds request because she did not think defendant would appear in court with the district attorney present. However, as Judge Wieland noted, defendant did appear in court without Hart at least once in 1991—at a trial setting conference with the district attorney present. This hearing could be the one that defendant mentioned.
Defendant also notes that his early declarations stated that Judge McMechan had expressed strong views against allowing him to proceed as cocounsel. At the evidentiary hearing, Judge McMechan testified that it would not be his "policy to proceed with a section 987.9 funds application where counsel was involved regardless of the defendant's status." Defendant claims the "only possible way" he could have known of these views is if he had actually been present at the alleged hearing. However, as Judge Wieland noted, "[t]he transcript of the January 30, 1991 hearing [at which defendant was present] contains a court statement that may be interpreted along those lines. That is the most likely source of that statement." Defendant asserts that the "mild discussion of the law regarding co-counsel status of criminal defendants which occurred at the 30 January 1991 hearing simply is not comparable to the extremely strong statement which [he] attributes to Judge [22 Cal.4th 243] McMechan at the hearing." To the extent this statement is correct, it does not aid defendant's credibility. Judge McMechan's testimony at the evidentiary hearing was equally mild. Only defendant attributes strong language to Judge McMechan.
Defendant makes other arguments regarding the evidence but presents no reason to overturn Judge Wieland's carefully considered finding.
In a separate argument, defendant asserts that Judge McMechan abused his discretion in denying the funds request at the second hearing. However, Judge Wieland found that the second hearing never occurred. Moreover, even if we were to hypothesize that the second hearing did occur but left no trace in the record or the memory of anyone but defendant, Judge McMechan testified that he would not have proceeded without cocounsel's presence. Such a ruling would have been well within the court's discretion. Attorney Hart made several funds requests, as had previous counsel. All were granted. A court certainly could refuse additionally to grant a large sum of money to a defendant acting as cocounsel without lead counsel's presence. Defendant was entitled to reasonable funds to investigate his defense, but he was not entitled to two parallel grants of public financing, one supervised by lead counsel and one obtained without lead counsel's knowledge or participation. fn. 3
Defendant makes an additional related argument. After Judge Wieland filed his decision, defendant moved to augment or settle the record again to include a "confidential declaration of [defendant] in support of his request for supplemental section 987.9 funds filed on 21 December 1990." He testified at the evidentiary hearing that he had filed such a document, although he was not sure whether it related to the October 9, 1990, request or the December 21, 1990, request. Judge Wieland found that this alleged declaration did not exist. We denied the application. Defendant contends this denial was erroneous.
The two funds requests were identical, as were the accompanying points and authorities. The documents were generic and stated neither the amount sought nor the reason. Defendant claimed for the first time at the evidentiary hearing that he also filed a supporting declaration as to one of the requests. This claim is no more credible than his claim of a second hearing before Judge McMechan. At one time, the appellate record regarding funds requests was incomplete, which was why we ordered the proceedings culminating in [22 Cal.4th 244] the evidentiary hearing. Having reviewed the record of these proceedings, including Judge Wieland's thorough and convincing statement of decision, we are now confident the record is complete. The alleged second hearing never occurred, and Judge McMechan did not deny a funds request. Indeed, all of defendant's funds requests were granted. "Defendant is entitled to an appellate record that accurately reflects what was done and said in the trial court—not what he wishes had been done or said." (People v. Tuilaepa (1992) 4 Cal.4th 569, 585 [15 Cal.Rptr.2d 382, 842 P.2d 1142].)
F. Cumulative Error
Defendant argues that the cumulative effect of the alleged errors was prejudicial. There was, however, no error to cumulate.
III. Conclusion
The judgment is affirmed.
George, C. J., Mosk, J., Kennard, J., Baxter, J., Werdegar, J., and Brown, J., concurred.
Appellant's petition for a rehearing was denied March 29, 2000.
FN *. Retired judge of the former Justice Court for the Kelseyville Judicial District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
FN 1. All further statutory references are to the Penal Code unless otherwise indicated.
FN 2. Section 987.9 provides a procedure for capital defendants to make confidential requests for funds for investigation expenses.
FN 3. We have cautioned that "[a]llowing a represented defendant to share legal functions with the attorney is generally undesirable." (People v. Frierson (1991) 53 Cal.3d 730, 741 [280 Cal.Rptr. 440, 808 P.2d 1197].) This case illustrates the undesirability of the arrangement.
Automatic appeal from a judgment of death.
| Date: | Citation: | Docket Number: | Category: | Status: | Cross Referenced Cases: |
| Mon, 01/24/2000 | 22 Cal.4th 226 | S025880 | Automatic Appeal | closed; remittitur issued | PEOPLE v. PHILLIPS (RICHARD LOUIS) (S004320) |
| 1 | The People (Respondent) Represented by Attorney General - Sacramento Office Thomas Y. Shigemoto, deputy P.O. Box 944255 Sacramento, CA |
| 2 | Phillips, Richard Louis A. (Appellant) San Quentin State Prison Represented by Donald J. Horvath Attorney at Law 43033 Glacier Lane Coarsegold, CA |
| Disposition | |
| Jan 24 2000 | Opinion: Affirmed |
| Dockets | |
| Mar 13 1992 | Judgment of death |
| Mar 31 1992 | Filed certified copy of Judgment of Death Rendered 3-13-92. |
| Mar 31 1992 | Application for Extension of Time filed By Court Reporters Durward Hope & Mary Sandoval to Complete R.T. |
| Apr 9 1992 | Extension of Time application Granted To Court Reporters To 5-4-92 To Complete R.T. |
| May 4 1992 | Application for Extension of Time filed By Court Reporter (Durward Hope) to Complete R.T. |
| May 21 1992 | Extension of Time application Granted To Court Reporter (Hope) To 6-3-92 To Complete Rt. |
| Apr 19 1993 | Counsel appointment order filed Donald J. Horvath Is Appt'd to represent Applt on His A.A., Including Any Related Habeas Proceedings. |
| Jun 2 1993 | Application for Extension of Time filed By Applt to request correction of Record. |
| Jun 3 1993 | Extension of Time application Granted To Applt To 7-30-93 To request Corr. of Record. |
| Jun 25 1993 | Filed: Applt's Applic. for Orders (1) to Transport Applt to Madera Co. Jail for Temporary Housing and (2) to Reimburse the Madera Co. Dept. of corrections For the cost of the Transportation (5 Pp.) |
| Jul 16 1993 | Filed: Response to Applt's Applic., filed 6-25-93. |
| Jul 20 1993 | Received: Stipulation of Madera Co. Counsel and Applt Re: Housing At Madera Co. Jail. |
| Jul 21 1993 | Application for Extension of Time filed By Applt to request correction of Record. |
| Jul 21 1993 | Filed: Applt's reply to Resp's response to motion to Transport Applt, Etc. (1 Pp.) |
| Jul 22 1993 | Extension of Time application Granted To Applt To 9-20-93 To request Corr. of Record. |
| Aug 11 1993 | Order filed: Denying Applt's Applic. for Transportation to Madera County Jail. |
| Sep 15 1993 | Application for Extension of Time filed By Applt to request correction of Record. |
| Sep 16 1993 | Extension of Time application Granted To Applt To 10-20-93 To request Corr. of Record. |
| Oct 18 1993 | Application for Extension of Time filed By Applt to request correction of Record. |
| Oct 19 1993 | Extension of Time application Granted To Applt To 11-19-93 To request Corr. of Record. |
| Nov 17 1993 | Application for Extension of Time filed By Applt to request correction of Record. |
| Nov 18 1993 | Extension of Time application Granted To Applt To 12-3-93 To request Corr. of Record. |
| Dec 1 1993 | Application for Extension of Time filed By Applt to request correction of Record. |
| Dec 7 1993 | Extension of Time application Granted To Applt To 12-23-93 To request Corr. of Record. |
| Dec 20 1993 | Application for Extension of Time filed By Appellant to request correction of the Record. |
| Dec 22 1993 | Extension of Time application Granted To Applt To 1-12-94 To request Corr. of Record. |
| Jan 11 1994 | Application for Extension of Time filed By Applt to request correction of Record. |
| Jan 13 1994 | Extension of Time application Granted To Applt To 3-18-94 To request Corr. of Record. |
| Feb 24 1994 | Change of Address filed for: Donald Horvath, Esq. |
| Mar 3 1994 | Change of Address filed for: For Atty Donald J. Horvath. |
| Mar 18 1994 | Application for Extension of Time filed By Applt to request correction of Record. |
| Mar 22 1994 | Extension of Time application Granted To Applt To 5-6-94 To request correction of Record. no further Extensions of time Are Contemplated. |
| May 6 1994 | Application for Extension of Time filed By Applt to request correction of Record. |
| May 9 1994 | Extension of Time application Granted To Applt To 5-13-94 To request correction of Record. no further Extensions of time Are Contemplated. |
| May 16 1994 | Received: Copy of Applt's request for correction of Record Etc., filed in Madera Co. Supr. Court (121 Pp.) |
| Mar 16 1995 | Compensation awarded counsel |
| May 30 1995 | Change of Address filed for: Atty Donald J. Horvath. |
| Apr 23 1996 | Motion filed By Applt to Augment & correct the Record; request for Stay of certification (on 4-26-96) requested. |
| Apr 23 1996 | Filed: One Vol. of Exhibits in support of motion to Augment. |
| May 15 1996 | Order filed: Denying Applt's request for Stay of Record certification & motion to Augment & correct the Record on Appeal. |
| Jun 21 1996 | Note: Certified Record returned Unfiled to Madera Superior Ct., for Clarification and Completion; Due Back by 7-22-96. (See letter of 6-21-96). |
| Jul 29 1996 | Record on appeal filed C-28 (6,241 Pp.) and R-28 (5,735 Pp.); Clerk's Transcript includes 2,532 pages of Juror Questionnaires. |
| Jul 29 1996 | Appellant's opening brief letter sent, due: 9-9-96. |
| Aug 8 1996 | Compensation awarded counsel |
| Sep 5 1996 | Application for Extension of Time filed To file Aob. |
| Sep 6 1996 | Extension of Time application Granted To 11-8-96 To file Aob. |
| Nov 5 1996 | Application for Extension of Time filed To file Aob. |
| Nov 6 1996 | Extension of Time application Granted To 12-9-96 To file Aob. |
| Dec 5 1996 | Application for Extension of Time filed To file Aob. |
| Dec 6 1996 | Extension of Time application Granted To 1-21-97 To file Aob. |
| Jan 6 1997 | Motion to augment record filed (AA) Motion by appellant to augment the record, & request for extension of time to file appellant's opening brief. |
| Feb 19 1997 | Record augmentation granted Appellant's request for an extension of time in which to file his opening brief is granted. Appellant's motion to augment the record on appeal is granted. The clek of the Superior Court of Madera County is directed to prepare a supplemental clerk's transcript containing a certified copy of appellant's "Ex Parte Petition for In Camera Hearing for Request of Supplemental 987.9 Funds" filed 12/21/90; appellant's points and authorities in support of that petition, and the 12/21/90 order setting an in camera hearing for 1/04/91. The clerk is further directed to obtain a certified supplemental reporter's transcript of the Penal Code section 987.9 hearing, if any, before Mariposa County Superior Court Judge Richard L. McMechan in early 1991, together with any order denying appellant's petition. |
| Apr 14 1997 | Supplemental record/transcript filed One volume of clerk's transcripts (pursuant to Supreme Court order of 2-19-97): Declaration of Clerk (filed under seal) |
| Apr 14 1997 | Letter sent to: Counsel Advising 1 Vol. C.T. & Decl of Madera Co. Super. Ct. Appeals Clerk filed, Pursuant to Ct.'s Order of 2-19-97. AOB Due 4-24-97. |
| Apr 24 1997 | Motion filed By Applt for an Order directing Madera Co. Clerk to Make A Reasonable Effort to Comply with this Court's Augmentation Order to 2-19-97; & request For Ext. of time to file Aob. |
| Apr 24 1997 | Filed: Letter from Applt, dated 4-16-97, Re: motion filed this Date. |
| May 14 1997 | Filed: Decl of Richard Phillips in support of motion for an Order directing Madera Co. Clerk to Make A Reasonable Effort to Comply Etc. |
| May 28 1997 | Order filed: Applt's motion for an Order directing the Clerk of the Madera Co. Superior Ct. to Make A Reasonable Effort to Comply with Our Prior Order Is denied Without Prejudice to A further request to Augment the Record Either with A certified R.T. of the Penal Code Section 987.9 Hearing before Mariposa Co. Superior Ct. Judge Richard L. Mc Mechan, If Obtainable, or with A Settled Statement from Judge Mc Mechan. the request for an Extension of time In which to file the AOB Is denied. |
| Jun 4 1997 | Motion to augment record filed (AA) Second motion to augment the record, or in the alternative for a settled statement & request for an extension of time to file appellant's opening brief. |
| Jun 18 1997 | Record augmentation denied Appellant's motion to augment the record, filed 6-4-97, is denied. The request for an extension of time in which to file appellant's opening brief, which was due on 4-24-97, is granted to & Including 6-30-97. |
| Jun 26 1997 | Application for Extension of Time filed To file Aob. |
| Jun 30 1997 | Extension of Time application Granted To 7-30-97 To file Aob. no further Extensions of time Are Contemplated. |
| Jul 29 1997 | Application for Extension of Time filed To file Aob. |
| Aug 4 1997 | Extension of Time application Granted To 8-29-97 To file Aob. no further Extensions of time will be Granted. |
| Sep 12 1997 | Filed: Applt's request for Relief from Default in Failing to file A Timely Aob. (AOB submitted Under Separate Cover.) |
| Sep 15 1997 | Order filed: Granting Applt's request for Relief from Default in Failing to file A Timely Aob. |
| Sep 15 1997 | Appellant's opening brief filed (152 Pp.) |
| Oct 15 1997 | Application for Extension of Time filed To file Respondent's brief |
| Oct 20 1997 | Extension of Time application Granted To December 15, 1997 To file Respondent's brief |
| Dec 11 1997 | Application for Extension of Time filed To file Resp's brief. |
| Dec 17 1997 | Extension of Time application Granted To 2-13-98 To file Resp's brief. |
| Jan 30 1998 | Compensation awarded counsel |
| Feb 27 1998 | Application for Extension of Time filed To file Resp's brief. |
| Mar 6 1998 | Extension of Time application Granted To 4-14-98 To file Resp's brief. |
| Apr 2 1998 | Application for Extension of Time filed To file Resp's brief. |
| Apr 8 1998 | Extension of Time application Granted To 5-14-98 To file Respondent's brief |
| May 1 1998 | Respondent's brief filed (59 Pp.) |
| May 11 1998 | Application for Extension of Time filed By Applt to file reply brief |
| May 12 1998 | Extension of Time application Granted To 7-20-98 To file reply brief |
| Jul 15 1998 | Application for Extension of Time filed To file reply brief. |
| Jul 16 1998 | Extension of Time application Granted To 9-3-98 To file reply brief. |
| Aug 19 1998 | Order filed: The Clerk of The Madera Co. Superior Court Recently Transmitted to this Court The Reporter's Transcript of The Hearing in this Action Held on 1-30-91, before Mariposa Co. Superior Court Judge Richard L. Mc Mechan. in Accordance with this Court's Augmentation Order filed 2-19-97, the Clerk of this Court Is Ordered to file that Transcript, and the Appellate Record Is Hereby Deemed Augmented to Include It. Because the Hearing Involves A motion Pursuant to Penal Code Section 987.9, the Transcript Shall be filed Under Seal & A copy Delivered to Counsel for Applt But, Pending further Order of this Court, not to the Attorney General. Applt May file A Supplemental Opening brief on Or before 9-8-98, Limited to Discussing the Current Status of issue Five of the AOB (Pp. 125- 134) and Any New issue the New Transcript Might Present. Respondent May file A Supplemental Resp's brief Replying to that brief within 20 Days of its filing. Applt May file A single reply Brief Replying Both to the Original Resp's Brief & Any Suppl Resp's Brief. If Applt Does not file A Suppl Opening Brief, the reply Brief Shall be Due 20 Days After the time to file Such brief has Expired. If Applt Does file A Suppl Opening brief, the reply brief Shall be Due 20 Days After The filing of The Suppl Resp's brief or The time to file that brief has Expired, Whichever Occurs First. |
| Aug 19 1998 | Filed: Filed R.T. of in Camera Hearing Held on 1-30-91. |
| Sep 2 1998 | Application for Extension of Time filed To file Applt's Suppl Opening brief. |
| Sep 4 1998 | Extension of Time application Granted To 9-18-98 To file Supplemental AOB |
| Sep 18 1998 | Application for Extension of Time filed By Applt to file Suppl Opening brief. |
| Sep 22 1998 | Extension of Time application Granted To 10-02-98 To file Supplemental AOB |
| Sep 29 1998 | Application for Extension of Time filed To file Suppl Opening brief. |
| Sep 30 1998 | Extension of Time application Granted To 11-2-98 To file Supplemental AOB |
| Nov 2 1998 | Motion filed Applt's Third motion to Augment the Record or in the Alternative Second motion for A Settled Statement & request for an Ext. of time to file Applt's Suppl Opening brief. |
| Nov 18 1998 | Order filed: Applt's motion to Augment or Settle the Record, filed on 11-2-98, Is granted as Follows: the Superior Court Is directed to determine whether A Hearing Was Held in this Matter before Mariposa Co. Superior Court Judge Richard L. Mc Mechan Sometime After 1-30-91, in which Applt appeared Without Counsel, as Described in Applt's Declaration, dated 10-24-98, and attached as an Exhibit in support of the Augmentation Motion. (See People V. Hawthorne (1992) 4 Cal.4th 43, 62-63.) the Court Shall Hold an Evidentiary Hearing If Necessary to Make this determination. If the Court determines no Such Hearing Occurred, it Shall Inform this Court of that Fact. If the Court determines the Hearing Occurred, it Shall Obtain A Reporter's Transcript of that Hearing, If Possible, Or, If not Possible, Settle the Record as to What Occurred At that Hearing. the Court Shall Also determine whether Applt filed an "Ex Parte request for an In-Camera Hearing to request Section 987.9 Funds and supporting Points and Authorities" on 10-9-90, as Described in the Augmentation motion And, If So, it Shall Augment the Record to Include those Pleadings. on this Court's own Motion, the Superior Court Is Additionally directed to determine whether Applt Made Any other Requests for Funds in 1990 or 1991, Not Currently Reflected in the Record, as Described in the Declaration of Katherine L. Hart, dated 9-25-98, and attached as an Exhibit in Support of the Augmentation Motion. If Applt did Make Any other Requests, the Superior Court Is directed to Augment the Record, If Possible, to Include the Requests, Any Orders Regarding those Requests, and the Reporter's Transcripts of Any Hearings Regarding Any of those Requests. If Any Portion Is not Available, the Superior Court Is directed to Settle the Record Regarding the Unavailable Portion. Pending further Order of This Court on A Showing of Good Cause, the Superior Court Shall Comply with the Confidentiality Requirements of Calif. Rules of Court, Rule 39.51(B). this Appeal has had Substantial Delays, Due Partly to the Superior Court's Initial Inadequate Preparation of the Record and Subsequent Deficient Efforts to Obtain Necessary Transcripts. Accordingly, and to Minimize further Delay, the Superior Court Is directed to Comply with these Orders as Expeditiously as Possible, and no Later Than 1-17-99. Judge Mc Mechan should be Consulted As Soon As Possible Regarding His Memory of these Matters. the time for filing A Supplemental Opening Brief Described in the Order of this Court dated 8-19-98, Is extended Until 20 Days After the Superior Court has Complied with this Order. the Rest of the briefing Schedule Stated in the 8-19-98, Order Shall Remain in Effect. |
| Nov 30 1998 | Filed: Declaration of Judge Richard L. Mc Mechan (Re: Court's Order of 11-18-98). |
| Dec 16 1998 | Filed: Declaration of Janet Gallagher (Exec. Officer of Madera Superior Court). Note: attachments Are Under Seal. |
| Dec 16 1998 | Filed: "certification of Clerk" (Janet Gallagher, Exec. Officer of Madera Superior Court). |
| Apr 29 1999 | Filed: Augmentation to the Record, Pursuant to Court's Order of 11-18-98: 1 Vol. C.T.; 1 Vol. R.T. (Under Seal); Confidential Statement of Decision; and order after hearing |
| Apr 29 1999 | Letter sent to: Counsel Advising Augmentation to Record Was filed this Date. Applt's Suppl Opening brief Due 5-19-99. |
| May 3 1999 | Filed: Applt's Fourth motion to Augment the Record or in the Alternative Third motion for A Settled Statement Etc. **** Docketed Out-Of-Sequence **** |
| May 6 1999 | Opposition filed By Resp to Applt's Fourth motion to Augment or Settle the Record. |
| May 19 1999 | Order filed: Denying Applt's 4th motion to Augment Record or in the Alternative 3rd motion for A Settled Statement & request for Ext. of time in which to File Suppl Opening brief. |
| Jun 1 1999 | Filed: Applt's request to file Suppl Opening brief Late (brief submitted Under Separate Cover.) |
| Jun 2 1999 | Order filed: The request of Applt for permission to file Applt's Supplemental Opening brief Late Is granted |
| Jun 2 1999 | Supplemental brief filed Appellant's Supplemental Opening Brief (20 pp.) |
| Jun 28 1999 | Application for Extension of Time filed To file response To Applt's Suppl Opening brief. |
| Jun 29 1999 | Application for Extension of Time filed To file response To Applt's Suppl Opening brief. |
| Jul 1 1999 | Extension of Time application Granted To 8-2-99 To file Respondent's response To Applt's Supplemental Opening brief |
| Aug 2 1999 | Application for Extension of Time filed To file Resp's Supplemental brief. |
| Aug 5 1999 | Extension of Time application Granted To 9-1-99 To file Supplemental AOB no further Extensions of time Are Contemplated |
| Aug 26 1999 | Order filed: The Ordered filed on 8/5/99, Is Amended to Read as Follows: on Application of Resp and Good Cause appearing, it Is Ordered that The time to Serve And file A response to Applt's Supplemental Opening brief Is extended to And Including 9/1/99. no further Extensions of time Are Contemplated. |
| Aug 31 1999 | Application for Extension of Time filed To file response To Applt's Suppl Opening brief. |
| Sep 1 1999 | Motion for access to sealed record filed Motion by respondent to obtain copies of sealed reporter's transcripts, etc. |
| Sep 14 1999 | Extension of Time application Granted To 9/30/99 To Resp To file response To Suppl. Aob. |
| Sep 15 1999 | Exhibits Lodged: From Evid. Hrg in Madera Co. Superior Crt. on 3-17-99: Exhibit Nos. 1-7 (Under Seal). |
| Sep 22 1999 | Motion for access to sealed record granted Respondent's motion to obtain copies of sealed records, filed 9/1/99, is granted as follows: The clerk of this court is directed to provide respondent with the reporter's transcript of the record correction proceeding held in the Madera County Superior Court on 3/17/99, with Exhibits; the "Clerk's Transcript on Appeal; Amended Confidential Order of Augmentation," filed in this court on 2/29/99; and the "Confidential Statement of Decision," filed in this court on 2/29/99. |
| Sep 29 1999 | Application for Extension of Time filed To file response To Applt's Suppl Opening brief. |
| Oct 5 1999 | Extension of Time application Granted To 10/15/99 To file Resp's response To Applt's Suppl Opening brief. no further Extensions of time will be Granted. |
| Oct 15 1999 | Supplemental Brief filed by: Respondent (21 Pp.) |
| Oct 27 1999 | Compensation awarded counsel |
| Nov 5 1999 | Appellant's reply brief filed (30 Pps.) |
| Nov 8 1999 | Letter sent to: Counsel Advising case Could be Scheduled for Oral Argument as early as January 2000 Calendar. Any request for Addit. time to Argue, Notification of Requirement for two Counsel, or advisement of "Focus issues" Shall be Made no Later Than 10 Days After the case has been Set for Oral Argument. |
| Dec 2 1999 | Case Ordered on Calendar: 1-7-00, 1:30pm, S.F. |
| Dec 9 1999 | Filed: Applt's request that Oral Argument be Set After 2-3-2000. |
| Dec 13 1999 | Order filed: "Applt's request that Oral Argument be Set After 3 February 2000" Is denied. |
| Dec 16 1999 | Filed: Letter from Resp dated 12/9/99; Re: Focus issues for Oral Argument. |
| Dec 17 1999 | Filed: Letter from Applt dated 12/13/99; Re: Focus issues for Oral Argument. |
| Jan 7 2000 | Submitted by order |
| Jan 7 2000 | Cause Called and Argued (not yet submitted) |
| Jan 7 2000 | Submitted by order |
| Jan 20 2000 | Compensation awarded counsel Atty Horvath |
| Jan 24 2000 | Opinion filed: Judgment affirmed in full Majority Opinion by Chin, J. -- joined by George C.J., Mosk, Kennard, Baxter, Werdegar & Brown JJ. |
| Feb 8 2000 | Rehearing Petition filed by: By Applt (12 Pp.) |
| Feb 18 2000 | Filed: Confidential Declaration of Atty Donald J. Horvath |
| Mar 1 2000 | Compensation awarded counsel Atty Horvath |
| Mar 6 2000 | Time extended to consider modification or rehearing to 4/21/00 |
| Mar 29 2000 | Rehearing denied |
| Mar 29 2000 | Remittitur issued (AA) |
| Mar 31 2000 | Order filed (150 day statement) |
| Apr 12 2000 | Received: Receipt for Remittitur |
| Apr 26 2001 | Filed: Letter from applt. PHILLIPS dated 4/24/2001. |
| Apr 26 2001 | Filed: "Petition for Order to proceed Pro Se; or alternately, appointment of counsel". |
| Apr 10 2002 | Request Denied At the request of condemned inmate Richard Louis Arnold Phillips, his pro se "petition for order to proceed pro se; or alternatively, appointment of counsel," filed April 26, 2001, is denied without prejudice subject to his re-filing of such request. George, C.J., was absent and did not participate. |
| Briefs | |
| Sep 15 1997 | Appellant's opening brief filed (152 Pp.) |
| May 1 1998 | Respondent's brief filed (59 Pp.) |
| Nov 5 1999 | Appellant's reply brief filed (30 Pps.) |
