Stanford Law School - Robert Crown Law Library

Filed 10/12/05

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S015008
v.
) Alameda
County
MARK LINDSEY SCHMECK,
Super. Ct. No. H-9033
Defendant and Appellant.
THE COURT:
The opinion filed in this matter on August 25, 2005, is modified as follows:
The first sentence of the second full paragraph on 37 Cal.4th at page 286 is
modified to read: “Defendant did not object to the prosecutor’s statement or seek an
admonition, and no exception to the general requirement of an objection is applicable;
to the extent defendant claims the prosecutor committed misconduct by misstating the
law, defendant has forfeited this claim on appeal.”
The first full paragraph on 37 Cal.4th at page 295 is modified to read as
follows: “We conclude that the trial court did not abuse its discretion in failing to
hold a further evidentiary hearing. The trial court is required to hold such a hearing
only when the defense adduces evidence demonstrating a ‘strong possibility that
prejudicial misconduct has occurred,’ and generally a hearing is unnecessary unless
there is a material conflict in the evidence presented by the parties. (Hedgecock,

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supra, 51 Cal.3d at p. 419.) Even assuming that a conversation occurred between
Juror D. N. and the prisoner, whether Juror D. N. spoke to someone was not a
material issue in the case, and evidence of any such conversation did not create a
likelihood of prejudicial misconduct. Rather, the conversation, if one occurred, was
relevant only if Juror D. N. spoke to a third person about the case, and the declaration
expressly stated that the juror did not do so. Indeed, the trial court previously had
held an evidentiary hearing to investigate assertions that the juror committed
misconduct, and found no misconduct. Under these circumstances, the trial court
acted within its discretion in declining to hold a second evidentiary hearing. (People
v. Brown (2003) 31 Cal.4th 518, 582.)”
This modification does not effect a change in the judgment.
2

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Opinion Information

Date:	Docket Number:
Wed, 10/12/2005	S015008M

Disposition
Aug 25 2005	Opinion: Affirmed

Dockets
Apr 5 1990	Judgment of death
Apr 11 1990	Filed certified copy of Judgment of Death Rendered   4-5-90.
Nov 15 1990	Received:   notice that Deputy A.G. Violet Lee will be representing respondent.
Mar 18 1992	Counsel appointment order filed   Upon request of appellant for appointment of counsel, Ruth L. Robinson, Esq., is hereby appointed to represent appellant on his automatic appeal now pending in this court, including any related habeas proceedings.
Apr 22 1992	Application for Extension of Time filed   By Applt to request correction of Record.
Apr 22 1992	Extension of Time application Granted   To Applt To 6-29-92 To request Corr. of Record.
Jun 19 1992	Application for Extension of Time filed   By Applt to request correction of Record.
Jun 22 1992	Extension of Time application Granted   To Applt To 7-29-92 To request Corr. of Record.
Jul 30 1992	Received:   Copy of Applt's Record correction motion filed in Superior Court (45 Pp.)
Oct 15 1992	Compensation awarded counsel
Dec 22 1992	Compensation awarded counsel
Jan 27 1993	Compensation awarded counsel
May 26 1993	Compensation awarded counsel
Jun 30 1993	Compensation awarded counsel
Jul 6 1994	Compensation awarded counsel
Jul 21 1994	Compensation awarded counsel
Mar 20 1998	Record on appeal filed   C-14 (3,872 Pp.) and R-64 (7,759 Pp.) (Includes Material Under Seal). Clerk's Transcript includes 2,309 pages of Juror Questionnaires.
Mar 20 1998	Appellant's opening brief letter sent, due:   4-29-98.
Apr 27 1998	Application for Extension of Time filed   To file Aob.
Apr 28 1998	Extension of Time application Granted   To 6-29-98 To file AOB
Jun 26 1998	Application for Extension of Time filed   To file Aob.
Jul 1 1998	Extension of Time application Granted   To 8-28-98 To file AOB
Aug 28 1998	Application for Extension of Time filed   To file Aob.
Aug 31 1998	Filed:   Suppl Decl of Ruth Robinson in support of motion for Ext. of Time.
Sep 1 1998	Extension of Time application Granted   To 10-27-98 To file AOB
Oct 26 1998	Application for Extension of Time filed   To file Aob.
Oct 30 1998	Filed:   Suppl Decl of Ruth Robinson in support of request for Eot.
Nov 3 1998	Extension of Time application Granted   To 12-28-98 To file Aob.
Dec 28 1998	Application for Extension of Time filed   To file Aob.
Jan 6 1999	Extension of Time application Granted   To 2-26-99 To file AOB
Feb 26 1999	Application for Extension of Time filed   To file Aob.
Mar 4 1999	Extension of Time application Granted   To 4-27-99 To file AOB
Apr 27 1999	Application for Extension of Time filed   To file Aob.
May 11 1999	Extension of Time application Granted   To 6-28-99 To file AOB
Jun 28 1999	Application for Extension of Time filed   To file Aob.
Jul 2 1999	Extension of Time application Granted   To 8-27-99 To file AOB no further Extensions of time Are Contemplated
Aug 23 1999	Application for Extension of Time filed   To file Aob.
Sep 2 1999	Extension of Time application Granted   T0 10/26/99 to file Aob. no further Extensions of time will be Granted.
Oct 26 1999	Application for Extension of Time filed   To file Aob.
Oct 29 1999	Extension of Time application Denied   To file Aob.
Jul 13 2000	Counsel's status report received (confidential)
Oct 19 2000	Counsel's status report received (confidential)
Nov 1 2000	Order filed:   Appellant's opening brief shall be filed on or before 12-1-2000. If the brief is not filed by that date, the court will consider issuance of an order directing counsel Ruth Robinson to show cause before this court, when the matter is ordered on calendar, why counsel should not be held in contempt of court and further payments suspended or other sanction imposed for the delay in the appellate process occasioned by the nine extensions of time to file the brief thus far granted.
Dec 1 2000	Counsel's status report received (confidential)
Dec 20 2000	Order to show cause issued (attorney contempt matter)   In accordance with the authority vested in this court under Code of Civil Procedure section 1209, Attorney Ruth Louise Robinson, 4930 Fulton St., No. 301, San Francisco, CA, 94121, is ordered to show cause before this court on February 7, 2001, at 9 am at its courtroom in the State Library and Courts Building, 914 Capitol Mall, Sacramento, CA, why she should not be held in contempt of court for the willful neglect of her duty to file the appellant's opening brief in this case which was due on Dec. 1, 2000. The written return shall be filed with the court in the San Francisco clerk's office on or before Friday, January 5, 2001. (Votes: George, CJ, Mosk, Kennard, Baxter, Chin and Brown, J.J.)
Dec 21 2000	Case Ordered on Calendar: for OSC   2-7-01, 9am, Sac.
Feb 2 2001	Filed:   attorney Ruth Robinson's return to OSC (perm.)
Feb 2 2001	Filed:   confidential letter in support of return to OSC. (confidential)
Feb 2 2001	Motion filed   by attorney Ruth Robinson to withdraw as counsel.
Feb 7 2001	Hearing held re Order to Show Cause re Contempt
Feb 13 2001	Order filed:   Pursuant to the bench order issued on February 7, 2001: The motion to withdraw as appointed counsel, filed by Ruth Louise Robinson on February 2, 2001, is granted. The order filed on March 18, 1992, appointing Ms. Robinson as counsel of record for Mark Lindsey Schmeck is vacated. Michael Millman, Executive Director of the California Appellate Project, is appointed to serve as interim counsel on appeal for Mr. Schmeck. Ms. Robinson is ordered to deliver on or before February 14, 2001, the complete record on appeal, draft copies of all briefs thus far prepared, all materials related to the habeas corpus investigation, and all related papers and documents in her possession to the office of the California Appellate Project, One Ecker Place, San Francisco, CA 94105. Ms. Robinson is ordered to cooperate fully with interim counsel and with new counsel. The order to show cause re contempt issued December 20, 2000, is discharged.
Feb 20 2001	Received letter from:   Atty Ruth Robinson dated 2/15/2001 re record delivered to CAP on 2/14/2001 and 2/20/2001.
Sep 13 2001	Counsel appointment order filed   The order appointing Michael Millman, Executive Director of the California Appellate Project, to serve as interim counsel on appeal for appellant Mark Lindsey Schmeck, filed February 13, 2001, is hereby vacated. Cliff Gardner is hereby appointed to represent appellant Mark Lindsey Schmeck for the direct appeal in the above automatic appeal now pending in this court. Michael Millman, Executive Director of the California Appellate Project, is hereby appointed to serve as interim habeas corpus/executive clemency counsel of record for appellant Mark Lindsey Schmeck.
Sep 14 2001	Letter sent to:   replacement counsel Cliff Gardner advising that at some point in the future, the court will send a letter advising counsel of the new briefing schedule.
Jan 11 2002	Counsel's status report received (confidential)   from atty Gardner.
Mar 6 2002	Appellant's opening brief letter sent, due:   9-3-2002.
Aug 1 2002	Counsel's status report received (confidential)   from atty Gardner.
Aug 7 2002	Compensation awarded counsel   Atty Gardner
Aug 29 2002	Request for extension of time filed   to file AOB. (1st request)
Sep 3 2002	Extension of time granted   to 11-4-2002 to file AOB. The court anticipates that after that date, only two further extensions totaling 120 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
Oct 29 2002	Request for extension of time filed   To file appellant's opening brief. (2nd request)
Nov 4 2002	Extension of time granted   To 1/3/2003 to file appellant's opening brief. The court anticipates that after that date, only one further extension totaling 60 additional days will be granted. Counsel is orderd to inform his or her assisting attorney or entity, if any, and assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet this schedule.
Nov 14 2002	Counsel's status report received (confidential)   from atty Gardner.
Nov 21 2002	Compensation awarded counsel   Atty Gardner
Jan 3 2003	Request for extension of time filed   to file appellant's opening brief. (3rd request)
Jan 8 2003	Extension of time granted   To 3/4/2003 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 assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
Feb 19 2003	Counsel appointment order filed   The order appointing Michael Millman, Executive Director of the California Appellate Project, to serve as interim habeas corpus/executive clemency counsel of record for appellant Mark Lindsey filed September 12, 2001, is hereby vacated. Lawrence A. Gibbs is hereby appointed to represent appellant Mark Lindsey Schmeck for habeas corpus/executive clemency proceedings related to the above automatic appeal now pending in this court.
Feb 19 2003	Compensation awarded counsel   Atty Gibbs
Feb 28 2003	Application to file over-length brief filed   (295 pp. appellant's opening brief submitted under separate cover)
Feb 28 2003	Request for judicial notice filed (in AA proceeding)   (Appellant's request)
Mar 5 2003	Compensation awarded counsel   Atty Gardner
Mar 5 2003	Order filed   Appellant's application for order permitting filing of oversize brief is granted.
Mar 5 2003	Appellant's opening brief filed   (295 pp.)
Mar 7 2003	Filed:   Supplemental certificate of service of appliation for order permitting filing of oversize brief, applcication for judicial notice and appellant's opening brief.
Mar 7 2003	Opposition filed   by respondent to appellant's request for judicial notice.
Apr 1 2003	Request for extension of time filed   to file respondent's brief. (1st request)
Apr 4 2003	Extension of time granted   to 6/3/2003 to file respondent's brief.
May 27 2003	Request for extension of time filed   to file respondent's brief. (2nd request)
May 29 2003	Extension of time granted   to 8/4/2003 to file respondent's brief. After that date, only two further extensions totaling about 90 additional days will be granted. Extension is granted based upon Deputy Attorney General Violet M. Lee's represenation that she anticipates filing that brief by 11/9/2003.
Jun 11 2003	Request for judicial notice denied   Defendant Mark L. Schmeck's February 28, 2003 "Application for Judicial Notice Pursuant to California Rules of Court 41 and 41.5" is denied.
Jul 3 2003	Motion filed   respondent's motion for copy of sealed portions of record.
Jul 28 2003	Request for extension of time filed   to file respondent's brief. (3rd request)
Jul 31 2003	Extension of time granted   to 10-3-2003 to file respondent's brief. After that date, only one further extension totaling about 30 additional days will be granted. Extension granted based upon Deputy AG Violet Lee's representation that she anticipates filing the brief by 11-9-2003.
Aug 6 2003	Counsel's status report received (confidential)   from atty Gibbs.
Aug 6 2003	Filed:   Confidential declaration of counsel Lawrence A. Gibbs pursuant to Penal Code Section 1241.
Aug 21 2003	Letter sent to:   counsel advising that the court is considering whether to unseal, on its own motion, the documents that are the subject of respondent's "Motion for Copy of Sealed Portions of Record," filed on 7-3-2003. (See Cal. Rules of Court, rule 12.5(f)(2).) The court invites counsel to serve and file a response, if they wish, on or before September 5, 2003, addressing whether any of the documents in question is "required to be kept confidential by law" (Cal. Rules of Court, rule 12.5(a)), and if not, whether "(1) [t]here exists an overriding interest that overcomes the right of public access"; (2) [t]he overriding interest supports [continued] sealing"; "(3) [a] substantial probability exists that the overriding interest will be prejudiced" in the absence of continued sealing; "(4) [t]he proposed [continued] sealing is narrowly tailored"; and "(5) [n]o less restrictive means exist to achieve the overriding interest" (id., rule 243.1(d).
Aug 22 2003	Compensation awarded counsel   Atty Gibbs
Aug 28 2003	Filed:   respondent's response, dated 8-28-2003, to court's letter of 8-21-2003, regarding sealed record.
Sep 4 2003	Request for extension of time filed   by appellant to file response to court's letter dated, 8/21/2003, regarding sealed record.
Sep 11 2003	Extension of time granted   to 9/19/2003 to appellant to file response to the court's letter dated, 8/21/2003, regarding sealed record.
Sep 11 2003	Filed:   appellant's response, dated 9-10-2003, to court's letter of 8-21-2003.
Sep 26 2003	Request for extension of time filed   to file respondent's brief. (4th request)
Oct 1 2003	Order filed   The Attorney General's July 3, 2003 "Motion for Copy of Sealed Portions of Record" is granted in part. The clerk is directed to provide copies of the following portions of the record to the Attorney General: Clerk's Transcript pages 983-985, 987-1013. On the court's own motion, the clerk is further directed to unseal the original portions of the record cited above. The remainder of the motion is denied.
Oct 1 2003	Extension of time granted   to 11/12/2003 to file resondent's brief. After that date, no further extension is contemplated. Extension is granted based upon Deputy Attorney General Violet M. Lee's representation that she anticipates filing that brief by 11/9/2003.
Oct 9 2003	Counsel's status report received (confidential)   from attorney Gibbs.
Nov 5 2003	Request for extension of time filed   to file respondent's brief. (5th request)
Nov 12 2003	Extension of time granted   to 11/24/2003 to file respondent's brief. Extension is granted based upon Deputy Attorney General Violet M. Lee's representation that she anticipates filing that brief by 11/24/2003. After that date, no further extension will be granted.
Nov 19 2003	Respondent's brief filed   (173 pp.)
Dec 17 2003	Request for extension of time filed   to file appellant's reply brief. (1st request)
Dec 23 2003	Extension of time granted   to 2/9/2004 to file appellant's reply brief.
Jan 27 2004	Request for extension of time filed   to file reply brief. (2nd request)
Jan 28 2004	Extension of time granted   to 4-9-2004 to file reply brief.
Apr 1 2004	Counsel's status report received (confidential)   from atty Gibbs.
Apr 7 2004	Request for extension of time filed   to file appellant's reply brief. (3rd request)
Apr 12 2004	Extension of time granted   to June 8, 2004 to file appellant's reply brief.
Apr 27 2004	Compensation awarded counsel   Atty Gibbs
May 19 2004	Appellant's reply brief filed   (24,567 words - 113 pp.)
Jun 7 2004	Compensation awarded counsel   Atty Gardner
Jun 29 2004	Counsel's status report received (confidential)   from atty Gibbs.
Sep 2 2004	Counsel's status report received (confidential)   from atty Gibbs.
Sep 2 2004	Filed:   Declaration of attorney Lawrence A. Gibbs pursuant to Penal Code Section 1241 (confidential).
Sep 29 2004	Compensation awarded counsel   Atty Gibbs
Nov 1 2004	Exhibit(s) lodged   People's 17 and 17A.
Dec 22 2004	Compensation awarded counsel   Atty Gibbs
Feb 7 2005	Filed:   Declaration of atty Gibbs pursuant to Penal Code Section 1241 (confidential).
Feb 9 2005	Counsel's status report received (confidential)   from atty Gibbs.
Feb 16 2005	Compensation awarded counsel   Atty Gibbs
Feb 18 2005	Related habeas corpus petition filed (concurrent)   No. S131578
Feb 24 2005	Exhibit(s) lodged   People's 64b and 64c.
Mar 3 2005	Compensation awarded counsel   Atty Gibbs
Mar 16 2005	Oral argument letter sent   advising counsel that the case could be scheduled for oral argument as early as the first May calendar, to be held the week of May 2, 2005, 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 27 2005	Compensation awarded counsel   Atty Gibbs
May 3 2005	Case ordered on calendar   5/31/05, 2pm, LA
May 13 2005	Filed:   respondent's focus issue letter, dated 5-12-2005.
May 17 2005	Filed:   appellant's focus issue letter, dated 5-16-2005.
May 20 2005	Received:   letter from respondent, dated 5-19-2005, with additional authority.
May 31 2005	Cause argued and submitted
Jun 6 2005	Exhibit(s) lodged   People's 3
Jun 8 2005	Compensation awarded counsel   Atty Gardner
Jul 8 2005	Exhibit(s) lodged   People's nos. 2, 36 and 45.
Aug 3 2005	Change of contact information filed for:   attorney Cliff Gardner.
Aug 25 2005	Opinion filed: Judgment affirmed in full   Majority Opinion by George, C.J. -----joined by Kennard, Baxter, Werdegar, Chin & Moreno, JJ.
Sep 8 2005	Rehearing petition filed   by appellant. (9 pp.)
Sep 12 2005	Filed:   certificate of compliance re word count for appellant's petition for rehearing. (1775 words)
Sep 26 2005	Time extended to consider modification or rehearing   to and including 11-23-2005, or the date upon which rehearing is either granted or denied, whichever occurs first. This order is entered nunc pro tunc as of 9-23-2005, due to clerical error.
Oct 12 2005	Remittitur issued (AA)
Oct 12 2005	Rehearing denied   Opinion modified.
Oct 12 2005	Opinion modified - no change in judgment
Oct 17 2005	Received:   acknowledgment of receipt of remittitur.
Oct 31 2005	Exhibit(s) returned   People's 2, 3, 17, 17A, 45, 64B and 64C.
Nov 2 2005	Received:   acknowledgment of receipt of exhibits.
Nov 3 2005	Order filed (150 day statement)
Jan 25 2006	Motion filed (AA confidential)
Apr 12 2006	Motion denied (confidential)

Briefs
Mar 5 2003	Appellant's opening brief filed
Nov 19 2003	Respondent's brief filed
May 19 2004	Appellant's reply brief filed

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