Supreme Court of California Justia
Citation 46 Cal. 4th 216, 206 P.3d 393, 92 Cal. Rptr. 3d 850

In re Bolden

Filed 5/4/09

IN THE SUPREME COURT OF CALIFORNIA

IN RE CLIFFORD STANLEY BOLDEN
on Habeas Corpus.
S099231
___________________________________ )

A jury convicted petitioner Clifford Stanley Bolden of the first degree
murder (Pen. Code, § 187)1 and robbery (§ 211) of Henry Michael Pedersen. The
jury found that petitioner used a deadly weapon for both offenses (§ 12022, subd.
(b)), and, as a special circumstance, that petitioner murdered Pedersen while
engaged in the commission of the robbery (§ 190.2, subd. (a)(17)(A)). The jury
fixed the penalty for the murder at death. The trial court denied the automatic
motion to modify penalty (§ 190.4, subd. (e)) and sentenced petitioner to death.
On petitioner’s automatic appeal, this court affirmed the judgment. (People v.
Bolden (2002) 29 Cal.4th 515.)
In a petition for a writ of habeas corpus, petitioner now seeks relief from
the judgment. He has alleged, among other things, that the attorney appointed to
represent him during the capital trial provided ineffective assistance by not
specifically asking prospective jurors during voir dire about their prior
acquaintance with victim Pedersen, and also that one of the trial jurors, Jose S.,
displayed bias and committed misconduct by not disclosing a prior relationship

1
All further statutory references are to the Penal Code unless otherwise
indicated.
1


with Pedersen, by prejudging the penalty issue, and by failing or refusing to
deliberate on penalty.2 This court issued an order to show cause limited to these
claims. In so doing, we made an implicit determination that petitioner failed to
state a prima facie case as to the other claims alleged in the petition. (In re
Sassounian (1995) 9 Cal.4th 535, 547.)
After the filing of respondent’s return and petitioner’s traverse, we
determined that there were disputed questions of fact requiring an evidentiary
hearing. We appointed as referee the Honorable Mary C. Morgan, a superior court
judge, and directed her to supervise discovery, take evidence, and make findings
of fact on these questions:
“1. Was Jose S[.], one of the trial jurors, personally acquainted with the
victim, Henry Michael Pedersen? If so, when and under what circumstances did
they become acquainted, and what was the nature of their relationship?
“2. If Jose S[.] was personally acquainted with Henry Michael Pedersen,
would he have disclosed that fact in response to a specific question on voir dire?
“3. Did Jose S[.] prejudge the issue of penalty?
“4. Did Jose S[.] engage in deliberations with the other jurors on the issue
of penalty, or did he fail or refuse to deliberate?”
The referee held an evidentiary hearing over eight days, commencing May
23, 2007, and concluding August 6, 2007. At this hearing, the referee heard
testimony from eight trial jurors (including Jose S.), three defense investigators,
the trial prosecutor, a district attorney investigator, a trial witness, Jose S.’s
biographer, and an investigator who had searched San Francisco newspapers for

2
Jose S. was selected as an alternate and was seated on the jury during the
penalty phase (after the prosecution rested its case in aggravation) when the trial
court excused one of the sitting jurors.
2


articles concerning petitioner. Thereafter, the referee submitted to this court a 25-
page report stating her findings and conclusions. In brief, the referee found that
Juror Jose S. was not personally acquainted with victim Pedersen, that Jose S. did
not prejudge the issue of penalty, and that he did deliberate with the other jurors
on the issue of penalty.
After considering the record of the hearing and the referee’s report, we
conclude that petitioner’s claims lack merit and that the order to show cause will
therefore be discharged and, by separate order, his petition for a writ of habeas
corpus will be denied.
I. THE TRIAL EVIDENCE
The evidence supporting petitioner’s conviction and sentence has been set
forth in People v. Bolden, supra, 29 Cal.4th 515, and is summarized here.
At trial, the prosecution presented evidence that victim Henry Michael
Pedersen was found dead in his apartment. He had been stabbed to death, and his
body had been wrapped in a bedspread and placed in a bathtub. When last seen
alive, Pedersen was in petitioner’s company, and petitioner’s fingerprints were
found in Pedersen’s apartment. When the police arrested him for Pedersen’s
murder, petitioner had property belonging to Pedersen, and he was carrying a
knife that was stained with human blood consistent with Pedersen’s blood type.
The defense presented evidence at the guilt phase that petitioner had
advertised his services as a model or escort in a newspaper called the Bay Area
Reporter that circulated primarily in the gay community, and that Pedersen had
previously answered a similar newspaper advertisement.
In argument to the jury at the guilt phase, defense counsel asserted that
even if the jury concluded that petitioner was responsible for Pedersen’s death, the
prosecution’s evidence was insufficient to prove that robbery was the motive for
the killing. Counsel suggested that the jury could reasonably infer that Pedersen
3
gave his property to petitioner in payment for petitioner’s services as a model or
escort, or, alternatively, that petitioner decided to take Pedersen’s property only
after Pedersen’s death.
The prosecution’s case in aggravation at the penalty phase included
evidence that on January 3, 1979, in San Francisco, petitioner killed Ernest Cole
by slashing his throat with a machete, and that on May 4, 1979, in San Jose,
petitioner killed Cruz Ramirez by stabbing him twice in the back with a knife.
Petitioner was convicted of voluntary manslaughter for each of these killings. The
defense case in mitigation at the penalty phase included evidence about
petitioner’s childhood and upbringing, as well as testimony by two clinical
psychologists and a psychiatrist about petitioner’s mental functioning and how
certain events and conditions in his life had affected his development.
II. THE REFERENCE HEARING: EVIDENCE AND FINDINGS
A. Juror Jose S.’s Prior Acquaintance with Victim Pedersen
Charlia S., one of the jurors at petitioner’s capital trial, executed a
declaration on August 22, 1996, five years after that trial ended. At the time of the
reference hearing in 2007, Charlia S. had died. The referee admitted her
declaration into evidence. In the declaration, Charlia S. stated: “One day when
we were waiting for the bus, [Jose S.] said he knew the victim, Michael Pederson
[sic], a gay man. [Jose S.] referred to the victim as ‘Michael’ and said ‘Michael
was a good man.’ [Jose S.] said ‘Michael’ had been in some kind of trouble when
he was younger, and that he ([Jose S.]) helped him get out of that trouble. The
trouble had something to do with the Emporium department store. I believe [Jose
S.] said he helped Michael Pederson [sic] get a job at the Emporium, which job he
did not hold for very long.”
4
Russell Stetler testified at the reference hearing that he was a defense
investigator during petitioner’s trial. In that capacity, he interviewed Juror Charlia
S. on July 1, 1991, a few months after the jury had returned the penalty verdict on
March 11, 1991. His notes of that interview did not report the juror’s words
verbatim but paraphrased what she told him about Juror Jose S.’s prior
acquaintance with victim Pedersen, as follows: “I think he knew this guy.
Something he said to me before he was on the jury. When Pederson [sic] was
younger, in trouble at the Emporium or something, he counseled him on it.”
Stetler interviewed Jose S. on July 7, 1991. In that interview, Jose S. denied any
prior acquaintance with Pedersen.
Jose S. testified at the hearing and denied any prior acquaintance with
victim Pedersen. Trial Juror Andrew N. testified that Jose S. indicated, during the
trial, that he had heard of Pedersen but did not know anyone who knew him. Trial
Jury Foreperson John C. testified that Jose S. never said anything about Pedersen
that indicated he had heard about him before the trial. Trial Juror Allen P.
likewise testified that Jose S. never indicated that he knew Pedersen or knew of
him.
The referee found that petitioner did not establish by a preponderance of
the evidence that Juror Jose S. was personally acquainted with victim Henry
Michael Pedersen.
B. Voir Dire Concealment of Prior Acquaintance
It is undisputed that at petitioner’s capital trial none of the trial jurors was
specifically asked on voir dire about prior acquaintance with victim Pedersen.
Because Juror Jose S. consistently denied acquaintance with Pedersen, Jose S. was
not asked at the reference hearing whether he would have disclosed such an
acquaintance had he been specifically asked about it on voir dire. The referee
5
made no findings on this point, concluding that it was unnecessary to do so in light
of the finding that Jose S. was not personally acquainted with Pedersen. In his
brief on the merits in this court, petitioner concedes that his claim of ineffective
assistance of trial counsel, insofar as it is based on counsel’s not having
specifically inquired during voir dire about prior acquaintance with the victim, is
not viable.
C. Prejudgment of Penalty Issue
At the reference hearing, Eugene Sweeters, who was the prosecutor at
petitioner’s capital trial, testified about Juror Jose S.’s responses on voir dire when
asked whether, if petitioner’s trial reached the penalty phase, he would consider
both penalties, life without possibility of parole and death. On voir dire, Jose S.
expressed strong reservations about the death penalty but affirmed that he would
consider both penalties and decide the penalty issue based on the particular
circumstances shown by the evidence.
Juror Jose S. testified at the reference hearing that he concluded death was
the appropriate penalty for petitioner only after he had listened to all the evidence
presented at both phases of the trial. Juror Andrew N. expressed the opinion that
Jose S. had made up his mind on the penalty issue before deliberations began, but
he was unable to provide any facts about what Jose S. said or did that caused him
to form that opinion. In her declaration, Juror Charlia S. stated: “I recall thinking
when [Jose S.] was put on the jury that the judge should have picked another
alternate, that this alternate could not be impartial, that he was determined to
decide the case so as to make some sort of point about being gay.”
On this issue, the referee provided this summary of the evidence: “There
was no evidence that [Jose S.] based his decision on anything other than the
evidence presented at both phases of the trial. He stated during voir dire that he
6
was open to deciding which penalty was more appropriate based upon the
evidence. He testified during the hearing that he based his decision on all the
evidence during both phases of the trial. [Andrew N.’s] testimony was merely his
opinion and not based on any specific facts. Similarly, [Charlia S.’s] statement is
pure conjecture.”
The referee found that petitioner did not establish by a preponderance of
the evidence that Juror Jose S. prejudged the issue of penalty.
D. Failure or Refusal to Deliberate
At the reference hearing, Juror Jose S. testified that when deliberations
began, he felt that death was the appropriate penalty. A straw vote taken early in
the deliberations was 10 to 2 against the death penalty. Each juror then took three
or four minutes to explain his or her position. Jose S. testified that he told the
other jurors he was in favor of death, but also that he could change his vote if they
gave him a sufficiently persuasive reason to do so. He listened to what the other
jurors said, but he never changed his mind because the other jurors never
persuaded him that death was not the more appropriate penalty.
In her declaration, Juror Charlia S. stated: “[Jose S.]’s behavior in
deliberations was consistent with the determination he showed before
deliberations began. He would not listen. He just kept pushing until all the votes
were there for death.”
Juror Allen P. testified at the hearing that during penalty deliberations Juror
Jose S. was a strong advocate for the death penalty. He recalled Jose S. saying he
would not change his mind. He also recalled Jose S. engaging with other jurors
and arguing his position in favor of the death penalty.
The trial jury foreperson, John C., testified at the hearing that he did not
recall juror Jose S. saying he would never change his vote. On the issue of
7
penalty, all the jurors deliberated and expressed their views. Juror Kathleen K.,
testifying at the hearing, did not remember anything unusual about Jose S.’s
participation in the penalty deliberations.
Juror Andrew N. testified that during penalty deliberations Juror Jose S.
announced: “ ‘I am not going to let you guys just get out of here because of—
because you want to go home.’ ” He did not recall Jose S. saying he would not
change his vote, but Jose S. did say he would not change his vote “ ‘just because
ya’ll want to go home.’ ” According to his recollection, Jose S. talked a lot during
deliberations, listened to the other jurors, and argued in favor of the death penalty.
Juror Thomas S. testified that at the start of penalty deliberations Juror Jose
S. announced he would only go for the death penalty. In his opinion, Jose S. did
not deliberate but merely stuck to his position; Jose S. seemed to be completely
inflexible. He testified that Jose S. did not explain the basis for his position on the
penalty issue. Thomas S. testified that he had originally voted for life
imprisonment without possibility of parole and that he regretted changing his vote.
On this issue, the referee found that Jurors Jose S. and Andrew N. were
credible witnesses. The referee gave less weight to the testimony of Juror Thomas
S. and the declaration of Juror Charlia S., providing this explanation: “Both
[Charlia S.] and [Thomas S.] seemed to conclude that because [Jose S.] early on
stated his position for the death penalty (as apparently did several other jurors) and
never changed his mind (contrary to all the jurors who were initially against the
death penalty), he failed to deliberate. The referee does not reach this conclusion.
The fact that [Jose S.] never changed his mind does not mean that he did not listen
to or consider arguments contrary to his position.”
The referee provided this summary of her findings on this issue: “[Jose S.]
did announce at the beginning of deliberations that he was in favor of the death
penalty, but the evidence before the referee did not show by a preponderance of
8
the evidence that he refused to consider other points of view. He participated in
deliberations and interacted with the other jurors. He listened to them and
expressed his own views. He did not refuse to speak to other jurors, and he did
not separate himself physically from the other jurors.”
III. LEGAL PRINCIPLES
“Because a petition for a writ of habeas corpus seeks to collaterally attack a
presumptively final criminal judgment, the petitioner bears a heavy burden
initially to plead sufficient grounds for relief, and then later to prove them.”
(People v. Duvall (1995) 9 Cal.4th 464, 474.) The petitioner “must prove, by a
preponderance of the evidence, facts that establish a basis for relief on habeas
corpus. [Citation.]” (In re Visciotti (1996) 14 Cal.4th 325, 351.)
In a proceeding on a petition for a writ of habeas corpus, this court
independently reviews a referee’s resolution of legal issues and mixed questions of
law and fact. (In re Johnson (1998) 18 Cal.4th 447, 461.) Because the referee
observes the demeanor of testifying witnesses, and thus has an advantage in
assessing their credibility, this court ordinarily gives great weight to the referee’s
findings on factual questions. (In re Avena (1996) 12 Cal.4th 694, 710.)
IV. PETITIONER’S EXCEPTIONS TO THE REFEREE’S REPORT
In his exceptions to the referee’s report, petitioner argues, first, that the
referee erred in assuming that petitioner had the burden to prove that Juror Jose S.
was actually acquainted with victim Henry Michael Pedersen. Petitioner insists
that he never alleged in the petition that Jose S. was actually acquainted with
Pedersen, and that his “claim that [Jose S.] committed misconduct and was biased
rests not on his truthfulness in speaking with [Charlia S.] on issues on which he
was not questioned, but on his withholding of the information demanded by the
trial court and his display of bias and personal connection to the victim when
talking with [Charlia S.] and others.” We view this statement as a concession that
9
petitioner is not asserting, and thus is not entitled to relief on the basis of, any
claim of juror misconduct or juror bias that depends on the existence of a personal
relationship between Juror Jose S. and victim Pedersen. Petitioner does not
dispute, and effectively concedes, that the evidence at the reference hearing did
not establish the existence of any such relationship.
Next, petitioner faults the referee for not acknowledging in her report all of
the evidence that Juror Jose S. claimed to have known victim Pedersen. We
disagree. A referee’s report need not describe in detail the evidence presented at
the reference hearing. The report need only contain the referee’s findings of fact
on the reference questions and a summary of the evidence supporting those
findings. Evidence that Jose S. claimed to know Pedersen, if believed, might be
relevant to petitioner’s assertion that Jose S. was biased against petitioner and
prejudged the issue of penalty, but it certainly does not compel a finding in
petitioner’s favor on those issues. Having reviewed the record of the evidentiary
hearing, we find no deficiency in the referee’s summary of the evidence
supporting the finding that Jose S. did not prejudge the issue of penalty.
Petitioner faults the referee for striking the testimony of Michael Gorman,
who had written a biography of Juror Jose S. At the hearing, Gorman testified that
in the process of writing the book he interviewed extensively both Jose S. and
others with knowledge of Jose S.’s life. In his opinion, Jose S. is not a reliable
historian of events in his own life and tends to embellish the facts to make himself
the hero of every story about his life and to omit or dismiss any facts that might
reflect badly on him. At the conclusion of Gorman’s testimony, the referee
granted respondent’s motion to strike all of that testimony as irrelevant to the
reference questions.
In her report, the referee had this to say about Gorman’s testimony: “Even
if Mr. Gorman’s opinion had been received into evidence, the referee would have
10
given it very little weight. Mr. Gorman’s opinion as to [Jose S.]’s veracity was
based on his experience with [Jose S.] while interviewing him for a biography.
That context might very well lend itself to [Jose S.]’s making every story about
himself, always making himself the hero and the good guy. However, there was
no showing of any connection between [Jose S.]’s image of himself . . . and [Jose
S.]’s role as juror. In fact, the circumstantial evidence showed that [Jose S.] did
not connect the two roles. During the four years Mr. Gorman worked with [Jose
S.], [Jose S.] never mentioned the trial. [Jury Foreperson John C.], who several
years after the trial joined [an organization of which Jose S. was a prominent
member], never had a conversation with [Jose S.] about the trial, although they
each acknowledged that they had served on a jury together. In short, Mr.
Gorman’s opinion that [Jose S.] was not a reliable historian for purposes of his
biography does not shed much light on [Jose S.]’s credibility during this
proceeding or during the trial.”
We agree with the referee on this point. A biographer’s opinion that Juror
Jose S. tended to embellish his description of his own life to cast himself in the
best possible light is only marginally relevant in evaluating his credibility as to the
factual questions that we asked the referee to determine. More important by far
are Jose S.’s own testimony at the hearing, where he was subjected to vigorous
cross-examination, and the testimony of those who had served with him as jurors
at petitioner’s trial.
Petitioner takes exception to the referee’s response to the second reference
question, which asked: “If Jose [S.] was personally acquainted with the victim,
would he have disclosed that fact in response to a specific question on voir dire?”
Declining to answer this question, the referee explained: “Because Jose S[.] was
not personally acquainted with Henry Michael Pedersen, it is not necessary for the
referee to make any findings in response to this question.” Petitioner argues that,
11
based on evidence adversely reflecting on Jose S.’s credibility as to other matters,
the referee should have found that Jose S. would not have disclosed a personal
relationship with victim Pedersen had such a relationship actually existed.
The referee’s response was appropriate. The referee correctly interpreted
the conditional form of the second question as indicating that a response was
necessary only if the referee found that Jose S. was personally acquainted with the
victim. Because such a personal acquaintance was not proved to exist, no answer
to the second question was expected or needed. What Jose S. might have done
had he been personally acquainted with Pedersen is entirely speculative and
irrelevant to the claims on which this court issued an order to show cause.
Petitioner argues next that the referee’s finding that Juror Jose S. did not
prejudge the issue of petitioner’s penalty was based on an incorrect understanding
of the meaning of the term “prejudge” in this context. According to petitioner,
Jose S. prejudged the penalty because, by his own admission, he formed a firm
opinion that death was the appropriate penalty after hearing the evidence but
before he began deliberations with the other jurors. But it is not prejudging for a
juror to form an opinion about the proper verdict before deliberations begin,
provided that the juror’s opinion is based on the evidence presented at trial and not
on extrinsic matters. (People v. Leonard (2007) 40 Cal.4th 1370, 1412; see also In
re Hitchings (1993) 6 Cal.4th 97, 119-122.)
Petitioner argues that the referee ignored the rule that a juror’s suppression
of material information on voir dire supports an inference that the juror has
prejudged the case (In re Hitchings, supra, 6 Cal.4th at p. 120). Petitioner asserts
that this rule applies here because Juror Jose S. suppressed material information
during voir dire about his connection with petitioner’s roommate, Andre
Montgomery, and with prosecution witness Thomas Sherck.
12
When he killed victim Pedersen, petitioner was living with Andre
Montgomery, who worked as a female impersonator at a nightclub. Juror Jose S.
worked at the same nightclub and was acquainted with Montgomery, but Jose S.
did not disclose his acquaintance with Montgomery to the trial court during voir
dire or at any time during petitioner’s trial. Montgomery’s name was on a witness
list that the trial court read at the outset of voir dire, but Montgomery never
testified at petitioner’s trial.
When interviewed by defense investigator Russell Stetler shortly after the
penalty verdict, Juror Jose S. said that during the trial it had dawned on him that
petitioner was Montgomery’s roommate. He told Stetler that Montgomery had
spoken of his roommate as the “romance of the year” and that he, Jose S., had
wanted to meet that person.
At the reference hearing, Jose S. testified that he did not recall hearing
Montgomery’s name read as a potential witness and that he would have disclosed
his acquaintance with Montgomery had he heard the name being read. He also
testified that he was not very familiar with Montgomery’s last name, knowing him
mainly as “Andre,” and that he might not have made the connection when
Montgomery’s name was read. He further testified that later, during the trial, he
realized that he was acquainted with petitioner’s roommate, Montgomery, but he
did not believe that he had a legal obligation at that point to disclose this
relationship. He said that Montgomery had raved about petitioner as “the shining
star,” but that he had never seen petitioner with Montgomery.
Thomas Sherck was a prosecution witness at petitioner’s capital trial. He
there testified that during the afternoon of September 8, 1986, he saw both
petitioner and victim Pedersen at the Pendulum, where Sherck worked as a
bartender. (People v. Bolden, supra, 29 Cal.4th at pp. 526-527.) When he arrived
at the trial to testify, Sherck told the prosecutor that he recognized an alternate
13
juror, Jose S. When questioned by the trial court out of the jury’s presence,
Sherck said he knew Jose S. only through his partner, that he saw Jose S. at most
twice a year, and that he did not think Jose S. knew him. When the trial court
questioned Jose S., out of the jury’s presence, Jose S. said he did not recognize
Sherck.
This evidence concerning Juror Jose S.’s relationships with Andre
Montgomery and Thomas Sherck does not establish that Jose S. suppressed
information on voir dire that was material to any issue at petitioner’s capital trial
or that demonstrated a bias against petitioner. Montgomery did not testify at
petitioner’s trial, and there was no evidence that Jose S.’s relationship with
Montgomery was likely to prejudice him against petitioner or that Montgomery
told Jose S. anything about petitioner that would be likely to produce a bias
against petitioner. Jose S.’s relationship with Sherck was very limited, and his
denial that he recognized Sherck was credible. In any event, nothing about Jose
S.’s relationship with Sherck was likely to produce a bias against petitioner. Thus,
Jose S.’s failure during voir dire to disclose his prior relationships with
Montgomery and Sherck does not establish that Jose S. was biased against
petitioner or prejudged petitioner’s case. (See People v. Ramos (2004) 34 Cal.4th
494, 519; In re Hamilton (1999) 20 Cal.4th 273, 300-301.)
Petitioner argues that Juror Jose S. committed misconduct, supporting an
inference of bias, by disclosing to a fellow juror, Charlia S., during the trial that he
was acquainted with petitioner’s roommate, Andre Montgomery. As mentioned
earlier, there was no evidence that Jose S.’s relationship with Montgomery was
likely to prejudice him against petitioner or that Montgomery told Jose S. anything
about petitioner that would be likely to produce a bias against petitioner. Nor is
there evidence that Jose S., when he told Charlia S. of his acquaintance with
Montgomery, was trying to influence her opinion about any issue in the case or
14
that the information was of the kind that was likely to exert such as influence.
Accordingly, Jose S.’s action in disclosing to Charlia S. his acquaintance with
Montgomery was not prejudicial juror misconduct, nor did it establish that Jose S.
was biased against petitioner.
Petitioner argues that Juror Jose S.’s behavior during deliberations, as
reported by his fellow jurors, Charlia S. and Thomas S., supports an inference that
he had prejudged the penalty issue. As mentioned above, however, on this issue
the referee found Charlia S. and Thomas S. less credible than Jose S. and Andrew
N. (See, ante, p. 8.) Giving great weight to the referee’s credibility determination
on this issue, we adopt the referee’s finding that Jose S. did not prejudge the
penalty issue, but instead based his penalty vote on the evidence presented at both
phases of the capital trial.
Petitioner argues that the referee’s finding that Juror Jose S. did not refuse
to deliberate rests on an incorrect understanding of the meaning of the term
“deliberate.” We have described a juror’s duty to deliberate in this way: “A
refusal to deliberate consists of a juror’s unwillingness to engage in the
deliberative process; that is, he or she will not participate in discussions with
fellow jurors by listening to their views and by expressing his or her own views.
Examples of refusal to deliberate include, but are not limited to, expressing a fixed
conclusion at the beginning of deliberations and refusing to consider other points
of view, refusing to speak to other jurors, and attempting to separate oneself
physically from the remainder of the jury. The circumstance that a juror does not
deliberate well or relies upon faulty logic or analysis does not constitute a refusal
to deliberate and is not a ground for discharge. Similarly, the circumstance that a
juror disagrees with the majority of the jury as to what the evidence shows, or how
the law should be applied to the facts, or the manner in which deliberations should
15
be conducted does not constitute a refusal to deliberate . . . . [Citation.]” (People
v. Cleveland (2001) 25 Cal.4th 466, 485.)
The referee’s report reflects a correct understanding of a juror’s duty to
deliberate. The referee found that during deliberations Juror Jose S. listened to the
other jurors, considered their points of view (while not being persuaded by them),
expressed his own views, and neither refused to speak to other jurors nor
physically separated himself from them. Giving great weight to the referee’s
factual determinations, we adopt the referee’s finding that Jose S. did not fail or
refuse to deliberate on the issue of penalty at petitioner’s capital trial. That finding
makes it unnecessary for us to consider the question of prejudice. Thus, we do not
decide what showing, if any, would be necessary or sufficient to reverse a
judgment of conviction because of a single juror’s failure to deliberate when the
juror’s conduct was not brought to the trial court’s attention during the jury’s
deliberations and the issue was raised for the first time in post-verdict proceedings.
Finally, petitioner contends that certain findings that the referee made about
the jurors’ knowledge of a jail escape plot are “factually erroneous, incomplete,
and should be considered only in respect to petitioner’s motion for issuance of a
second order to show cause.” We agree with petitioner that evidence regarding
juror awareness of the alleged jail escape plot was not relevant to the claims on
which we issued an order to show cause or to the questions on which we directed
the referee to make findings. It is apparent from the report that the referee did not
rely on this evidence in making any of her findings on the reference questions.
Accordingly, we have no occasion here to consider the jail escape plot evidence or
the referee’s findings in relation to it.
V. CONCLUSION AND DISPOSITION
Giving great weight to the referee’s credibility determinations, and her
factual findings based on those determinations, we conclude that petitioner has
16
failed to prove by a preponderance of the evidence that he was denied effective
assistance of counsel at trial by virtue of his trial attorney’s failure to ask
prospective jurors about their prior acquaintance with victim Henry Michael
Pedersen or that Juror Jose S. was biased against petitioner or committed
misconduct by failing to disclose a prior relationship with victim Pedersen, by
prejudging the issue of penalty, or by failing or refusing to deliberate on the issue
of penalty.
Because our order to show cause and our reference order were limited to
these claims, we do not here address any other claim set forth in the petition,
which will be resolved by a separate order. (See In re Scott (2003) 29 Cal.4th 783,
829.)
The order to show cause is discharged.
KENNARD,
J.
WE CONCUR:

GEORGE, C. J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.

17


See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion In re Bolden
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding XXX
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S099231
Date Filed: May 4, 2009
__________________________________________________________________________________

Court:


County:
Judge:


__________________________________________________________________________________

Attorneys for Appellant:

Jeanne Keevan-Lynch, under appointment by the Supreme Court, for Petitioner Clifford Stanley Bolden.

__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson and Dane R. Gillette,
Chief Assistant Attorneys General, Ronald A. Bass and Gerald A. Engler, Assistant Attorneys General,
Ronald S. Matthias, Glenn R. Pruden, Nanette Winaker and Frances Marie Dogan, Deputy Attorneys
General, for Respondent State of California.


Counsel who argued in Supreme Court (not intended for publication with opinion):

Jeanne Keevan-Lynch
P.O. Box 2433
Mendocino, CA 95460
(707) 964-7162

Frances Marie Dogan
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(4155) 703-5951


Document Outline

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Original proceeding. In this case, which is related to the automatic appeal in People v. Bolden (2002) 29 Cal.4th 515, the court issued an order to show cause limited to the following issues: Is petitioner entitled to relief from the judgment of death (1) on the ground of ineffective assistance of trial counsel based upon counsel's failure to specifically inquire on voir dire about a juror's prior acquaintance with the victim, or (2) on the ground of juror misconduct based upon the juror's (a) failure to disclose his prior relationship with the victim, (b) prejudgment of the penalty issue, or (c) failure or refusal to deliberate on penalty?

Opinion Information
Date:Citation:Docket Number:Category:Status:Cross Referenced Cases:
Mon, 05/04/200946 Cal. 4th 216, 206 P.3d 393, 92 Cal. Rptr. 3d 850S099231Habeas (AA Concurrent)closed; remittitur issued

PEOPLE v. BOLDEN (CLIFFORD STANLEY) (S022173)


Parties
1Bolden, Clifford Stanley (Petitioner)
San Quentin State Prison
Represented by Jeanne Keevan-Lynch
Attorney at Law
P.O. Box 2433
Mendocino, CA

2Department Of Corrections & Rehabilitation (Non-Title Respondent)
Represented by Attorney General - San Francisco Office
Frances M. Dogan, Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA


Opinion Authors
OpinionJustice Joyce L. Kennard

Disposition
May 4 2009Opinion: OSC discharged

Dockets
Jul 20 2001Filed:
  3 vols. of exhibits in support of petn.
Jul 20 2001Petition for writ of Habeas Corpus filed
  by atty Keevan-Lynch. (216 pp.)
Aug 3 2001Informal response requested
  (rule 60); due 9-4-2001. Any reply due within 30 days of service & filing of response.
Sep 4 2001Application for Extension of Time filed
  To file informal reponse. (1st request)
Sep 13 2001Extension of Time application Granted
  To 10/4/2001 to file informal response.
Oct 3 2001Application for Extension of Time filed
  to file informal response. (2nd request)
Oct 11 2001Extension of Time application Granted
  To 11/5/2001 to file informal response.
Nov 5 2001Application for Extension of Time filed
  To file informal response. (3rd request)
Nov 5 2001Note:
  Change of address for applt. counsel Jeanne Keevan-Lynch, filed in AA no. S022173.
Nov 7 2001Filed:
  Amended declaration of service of application for extension of time to file informal response.
Nov 9 2001Extension of Time application Granted
  To 12/5/2001 to file informal response.
Dec 4 2001Request for extension of time filed
  To file informal response. (4th request)
Dec 19 2001Extension of time granted
  To 1/4/2002 to file informal response. Dep. AG Dogan anticipates filing the response by 3/31/2002. Only three further extensions totaling 90 additional days are contemplated.
Jan 4 2002Request for extension of time filed
  To file informal response. (5th request)
Jan 15 2002Extension of time granted
  To 2/4/2002 to file informal response. Dep. AG Dogan anticipates filing the brief by 3/31/2002. Only two further extensions totaling 55 additional days are contemplated.
Feb 4 2002Request for extension of time filed
  To file informal response. (6th request)
Feb 13 2002Extension of time granted
  To 3/6/2002 to file informal response. Counsel anticipates filing the brief by 4/12/2002. Only one further extension totaling 37 additional days is contemplated.
Mar 6 2002Request for extension of time filed
  To file informal response. (7th request)
Mar 13 2002Extension of time granted
  To 4/19/2002 to file informal response. Dep. AG Dogan anticipates filing the brief by 4/19/2002. After that date, no futher extension is contemplated.
Apr 19 2002Request for extension of time filed
  To file informal response. (8th request)
Apr 25 2002Extension of time granted
  To 5/10/2002 to file informal response. Dep. Atty. General Dogan anticipates filing the informal response by 5/10/2002. No further extension is contemplated.
May 10 2002Request for extension of time filed
  To file informal response. (9th request)
May 15 2002Extension of time granted
  To 5/15/2002 to file informal response. Dep. Atty. General Dogan anticipates filing the document by 5/15/2002. No further extensions will be granted.
May 15 2002Request for extension of time filed
  To file informal response. (10th request)
May 20 2002Extension of time granted
  To 5/20/2002 to file informal response. Dep. Atty. General Dogan anticipates filing the document by 5/20/2002. After that date, no further extension will be granted.
May 20 2002Request for extension of time filed
  To file informal response. (11th request)
May 23 2002Informal Response filed (AA)
  (82 pp.)
May 23 2002Extension of time granted
  To 5/23/2002 to file informal response. Dep. Atty. Gen. Dogan anticipates filing that document by 5/23/2002. No further extension will be granted.
Jun 25 2002Request for extension of time filed
  To file reply to informal response. (1st request)
Jul 1 2002Extension of time granted
  To 7/29/2002 to file reply to informal response. Counsel anticipates filing that document by 8/27/2002. One further extension totaling 29 additional days is contemplated.
Jul 25 2002Request for extension of time filed
  To file reply to informal response. (2nd request)
Jul 30 2002Extension of time granted
  To 8/28/2002 to file reply to informal response. Counsel anticipates filing that document by 9/27/2002. One further extension totaling 30 additional days is contemplated.
Aug 29 2002Request for extension of time filed
  to file reply to informal response. (3rd request)
Sep 3 2002Extension of time granted
  to 9-27-2002 to file reply to informal response. The court anticipates that after that date, only one further extension totaling 30 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 30 2002Request for extension of time filed
  To file reply to informal response. (4th request)
Oct 3 2002Extension of time granted
  To 10/28/2002 to file the reply to the informal response to the petition for writ of habeas corpus. After that date, only one further extension totaling about 30 additional days will be granted. Extension is granted based upon counsel Jeanne Keevan-Lynch's representation that she anticipates filing that document by 11/26/2002.
Oct 3 2002Motion to consolidate filed (AA case)
  by petitioner to consolidate pending appeal (S022173) with habeas corpus proceedings for purposes of decision.
Oct 28 2002Request for extension of time filed
  To file reply to informal response. (5th request)
Oct 30 2002Extension of time granted
  To 11/27/2002 to file the reply to the informal response to the petition for writ of habeas corpus. After that date, only one further extension totaling 30 additional days will be granted. Extension is granted based upon counsewl Jeanne Keevan-Lynch's representation that she anticipates filing that document by 12/27/2002.
Nov 25 2002Request for extension of time filed
  To file reply to informal response to petition for writ of habeas corpus. (6th request)
Nov 27 2002Extension of time granted
  To 12/27/2002 to file the reply to the informal response to the petition for writ of habeas corpus. Extension is granted based upon counsel Jeanne Keevan-Lynch's representation that she anticipates filing that document by 12/27/2002. After that date, no further extension will be granted.
Dec 27 2002Received:
  reply to informal response. (Note: not filed because proof of service not signed.)
Dec 30 2002Note:
  Habes funds request filed in AA no. S022173 (confidential).
Dec 31 2002Reply to Informal Response filed (AA)
  (76 pp. excluding attached exhibits) (perm.)
Mar 12 2003Change of Address filed for:
  Petitioner's counsel Jeanne Keevan-Lynch.
Mar 28 2003Motion for discovery filed (in AA proceeding)
  Petitioner's "Penal Code Section 1054.9 Motion for Access to All Materials Possesed by Prosecution and Law Enforcement Agents That Defendant Was Entitled to Receive at Trial."
Apr 14 2004Discovery motion denied
  The motion for postconviction discovery, filed on March 28, 2003, is denied. Denial is without prejudice to filing or refiling motions pursuant to Penal Code section 1054.9 and In re Steele (2004) 32 Cal.4th 682 in superior court.
Oct 14 2004Received:
  Declarations in support of petition for writ of habeas corpus, inadvertently not included in original petition. (Exhibits 12, 13, and 14)
Nov 17 2004Order to show cause issued
  The Director of the Department of Corrections is ordered to show cause in this court, when the matter is placed on calendar, why the penalty verdict should not be set aside on the ground of ineffective assistance of trial counsel for failure to specifically inquire on voir dire about prior acquaintance with the victim, as alleged in claim XI.K, and on the ground of juror misconduct by Jose Sarria in failing to disclose his prior relationship with the victim, in prejudging the penalty issue , and in failing or refusing to deliberate on penalty, as alleged in claim XIII.C. The return is to be filed on or before December 17, 2004. Brown, J., was absent and did not participate. Votes: George, C.J., Kennard, Werdegar, and Moreno, JJ.
Dec 13 2004Written return filed
  (6 pp.)
Jan 10 2005Note:
  request for habeas corpus funds filed this date in related automatic appeal, no. S022173.
Jan 10 2005Request for extension of time filed
  to file traverse (reply) to return. (1st request)
Jan 12 2005Filed:
  supplemental declaration in support of request for extension of time to file reply to return.
Jan 14 2005Extension of time granted
  to 2/14/2005 to file the reply to the return to the order to show cause. After that date, no further extension will be granted.
Feb 2 2005Reply to return filed
  by attorney Keevan-Lynch. (13 pp.)
Feb 2 2005Motion filed (AA)
  Petitioner's post-order-to-show-cause request for authorization to issue subpoenas duces tecum for employment records.
Mar 16 2005Letter sent to:
  the Hon. Robert L. Dondero, Presiding Judge (San Francisco Superior Court) re selection of referee.
Mar 16 2005Reference hearing ordered
  THE COURT: Based on the record in this matter and good cause appearing, it is ordered: The Honorable Robert L. Dondero, Presiding Judge of the Superior Court of California, County of San Francisco, is to select a Judge of the San Francisco Superior Court to sit as a referee is this proceeding and to promptly notify this court of that selection. After appointment by this court, the Referee is to supervise discovery, take evidence, and make findings of fact on the following questions regarding the case of People v. Clifford Stanley Bolden (San Francisco Superior Court No. 123117; Judge Raymond D. Williamson, Jr.): 1. Was Jose Sarria, one of the trial jurors, personally acquainted with the victim, Henry Michael Pedersen? If so, when and under what circumstances did they become acquainted, and what was the nature of their relationship? 2. If Jose Sarria was personally acquainted with Henry Michael Pedersen, would he have disclosed that fact in response to a specific question on voir dire? 3. Did Jose Sarria prejudge the issue of penalty? 4. Did Jose Sarria engage in deliberations with the other jurors on the issue of penalty, or did he fail or refuse to deliberate? The Referee is directed to prepare and submit to this court a report of the proceedings conducted pursuant to this appointment, of the evidence adduced, and the findings of fact made. Brown, J., was absent and did not participate.
Mar 16 2005Motion denied
  Petitioner's "Post-Order-To-Show-Cause Request For Authorization to Issue Subpoenas Duces Tecum For Employment Records," filed February 2, 2005, is denied without prejudice. All discovery matters are to be addressed to the referee to be appointed by this court. Brown, J., was absent and did not participate.
Mar 16 2005Note:
  Habeas funds order filed in AA no. S022173 (confidential).
Apr 13 2005Referee appointed
  THE COURT: Based on the record in this matter and good cause appearing, it is ordered: The Honorable Mary Morgan, Judge of the Superior Court of California, County of San Francisco, is appointed to sit as a referee in this proceeding. She is to supervise discovery, take evidence, and make findings of fact on the following questions regarding the case of People v. Clifford Stanley Bolden (San Francisco Superior Court No. 123117; Judge Raymond D. Williamson, Jr.): 1. Was Jose Sarria, one of the trial jurors, personally acquainted with the victim, Henry Michael Pedersen? If so, when and under what circumstances did they become acquainted, and what was the nature of their relationship? 2. If Jose Sarria was personally acquainted with Henry Michael Pedersen, would he have disclosed that fact in response to a specific question on voir dire? 3. Did Jose Sarria prejudge the issue of penalty? 4. Did Jose Sarria engage in deliberations with the other jurors on the issue of penalty, or did he fail or refuse to deliberate? The Referee is directed to prepare and submit to this court a report of the proceedings conducted pursuant to this appointment, of the evidence adduced, and the findings of fact made.
Jul 5 2005Note:
  confidential request for habeas corpus funds filed this date in AA no. S022173.
Jul 20 2005Note:
  confidential order for habeas corpus funds filed this date in AA no. S022173.
Jul 25 2005Note:
  sent letter to referee requesting a status report.
Aug 22 2005Received:
  status report from referee.
Oct 31 2005Received:
  status report from referee.
Jan 3 2006Received:
  status report from referee, dated 12-27-2005.
Apr 17 2006Received:
  status report from referee, dated 4-12-2006.
Jun 26 2006Received:
  status report from referee, dated 6-21-2006.
Sep 18 2006Received:
  status report from referee, dated 9-15-2006.
Dec 5 2006Letter sent to:
  referee requesting status report.
Dec 22 2006Received:
  status report from referee.
Apr 5 2007Received:
  letter from referee, Judge Mary Morgan, dated April 2, 2007, regarding issuance of a subpoena.
Apr 10 2007Letter sent to:
  Judge Morgan in response to her letter received on April 5, 2007.
Jul 3 2007Note:
  sent letter to referee requesting status report.
Oct 31 2007Note:
  another letter sent to referee requesting status report.
Nov 26 2007Received:
  status report from referee, dated November 20, 2007.
Jan 28 2008Referee's report filed
 
Feb 6 2008Filed:
  evidentiary hearing record: one folder of pleadings, correspondence and minute orders; one envelope of exhibits; deposition of Jose Sarria; 19 vols. of reporter's transcript ( 733 pp.)
Feb 6 2008Letter sent to:
  counsel: parties are invited to serve and file exceptions to the report of the referee and simultaneous briefs on the merits on or before March 7, 2008. Responses, if any, should be served and filed 30 days thereafter.
Mar 7 2008Request for extension of time filed
  by respondent to file exceptions to the report of the referee and brief on the merits. (1st request)
Mar 10 2008Request for extension of time filed
  by petitioner to file exceptions to the report of the referee and brief on the merits. (1st request)
Mar 18 2008Extension of time granted
  Good cause appearing, the request of respondent for an extension of time to file the exceptions to the report of referee and brief on the merits is extended to and including May 6, 2008.
Mar 18 2008Extension of time granted
  Good cause appearing, the request of petitioner for an extension of time to file the exceptions to the report of referee and brief on the merits is extended to and including May 6, 2008.
Apr 3 2008Exhibit(s) filed (AA)
  3 vols. of exhibits to petitioner's motion to issue a second order to show cause.
Apr 3 2008Motion filed (AA)
  by petitioner "Motion to Issue a Second Order to Show Cause on Pending Habeas Petition."
Apr 21 2008Request for extension of time filed
  by respondent, "...response to motion to issue a second order to show cause on pending habeas petition." (1st request)
Apr 25 2008Extension of time granted
  On application of respondent and good cause appearing, it is ordered that the time to serve and file response to motion to issue a second order to show cause on pending habeas petition is extended to and including June 17, 2008.
May 5 2008Request for extension of time filed (AA)
  by petitioner to file exceptions to the report of the referee and brief on the merits. (2nd request)
May 6 2008Request for extension of time filed (AA)
  by respondent to file exceptions to referee's report and brief on the merits. (2nd request)
May 8 2008Extension of time granted
  Good cause appearing, and based upon counsel Jeanne Keevan-Lynch's representation that she anticipates filing the exceptions to the referee's report and brief on the merits by June 6, 2008, counsel's request for an extension of time in which to file that brief is granted to June 6, 2008. After that date, no further extension is contemplated.
May 16 2008Request for extension of time filed (AA)
  to file respondent's exceptions to referee's report and brief on the merits.
May 20 2008Extension of time granted
  Good cause appearing, and based upon Deputy Attorney General Frances Marie Dogan's representation that she anticipates filing the exceptions to referee's report and brief on the merits by June 13, 2008, counsel's request for an extension of time in which to file that brief is granted to June 13, 2008. After that date, no further extension is contemplated.
Jun 6 2008Exceptions/briefing filed re referee's report
  petitioner's brief on the merits and exceptions to findings of referee. (56 pp.; 14,835 words)
Jun 13 2008Request for extension of time filed (AA)
  to file respondent's exceptions to referee's report and brief on the merits.
Jun 17 2008Request for extension of time filed (AA)
  by respondent, "...response to motion to issue a second order to show cause on pending habeas petition." (2nd request)
Jun 19 2008Extension of time granted
  Good cause appearing, and based upon Deputy Attorney General Frances Marie Dogan's representation that she anticipates filing the exceptions to the referee's report and brief on the merits by June 20, 2008, counsel's request for an extension of time in which to file that document is granted to June 20, 2008. After that date, no further extension will be granted.
Jun 19 2008Extension of time granted
  On application of respondent and good cause appearing, it is ordered that the time to serve and file response to motion to issue a second order to show cause on pending habeas petition is extended to and including August 18, 2008.
Jun 19 2008Exceptions/briefing filed re referee's report
  "Respondent's Brief On The Merits". (12,007 words; 40 pp.)
Jul 2 2008Request for extension of time filed (AA)
  to file reply to petitioner's brief on the merits and exceptions. (1st request)
Jul 10 2008Extension of time granted
  Good cause appearing, and based upon Deputy Attorney General Frances Marie Dogan's representation that she anticipates filing the reply to petitioner's brief on the merits and exceptions to the referee's finding by July 31, 2008, counsel's request for an extension of time in which to file that brief is granted to July 31, 2008.
Jul 31 2008Response brief re referee's report (fully briefed)
  by respondent, "Response to Petitioner's Exceptions to the Referee's Report and Brief on the Merits" (11 pp.)
Aug 15 2008Request for extension of time filed (AA)
  by respondent, "...Response to Motion to Issue a Second Order to Show Cause on Pending Habeas Petition." (3rd request)
Aug 19 2008Extension of time granted
  Good cause appearing, and based upon Deputy Attorney General Frances Marie Dogan's representation that she anticipates filing the response to the motion to issue a second order to show cause on the pending petition for writ of habeas corpus by August 29, 2008, counsel's request for an extension of time in which to file that brief is granted to August 29, 2008. After that date, no further extension is contemplated.
Aug 29 2008Opposition filed
  by respondent "Opposition to Motion to Issue a Second Order to Show Cause on Pending Habeas Petition".
Sep 26 2008Filed:
  by petitioner " petitioner's reply to opposition to motion to issue a second order to show cause on pending habeas petition".
Feb 11 2009Motion denied
  Petitioner's motion to issue a second order to show cause on the pending habeas corpus petition is denied. Werdegar, J. was absent and did not participate.
Feb 11 2009Oral argument letter sent
  advising counsel that the court could schedule this case for argument as early as the April calendar, to be held the week of April 6, 2009, in Los Angeles.
Mar 11 2009Case ordered on calendar
  to be argued on Tuesday, April 7, 2009, at 1:30 p.m., in Los Angeles
Mar 23 2009Received:
  appearance sheet from Deputy Attorney General Frances Marie Dogan, indicating 30 minutes for oral argument for respondent.
Mar 24 2009Received:
  appearance sheet from Attorney Jeanne Keevan-Lynch, indicating 30 minutes for oral argument for petitioner.
Apr 7 2009Cause argued and submitted
 
May 4 2009Opinion filed: Order to show cause discharged
  Opinion by Kennard, J -----joined by George C.J., Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ.
Jun 10 2009Order filed: remaining habeas corpus issues denied
  The petition for writ of habeas corpus filed in this court on July 20, 2001, is denied. With the exception of claims XI.K and XIII.C, which were resolved by a separate opinion (see In re Bolden on Habeas Corpus (2009) 46 Cal.4th ___), each claim is denied on the merits for failure to state a prima facie case for relief. Insofar as it repeats a claim made on appeal that the prosecutor committed misconduct by stating or implying that petitioner stole victim Pedersen's wallet and credit cards, claim XII is procedurally barred as repetitive of a claim presented and rejected on appeal. (In re Harris (1993) 5 Cal.4th 813, 825; In re Waltreus (1965) 62 Cal.2d 218, 225.)
Jun 10 2009Letter sent to counsel: opinion now final
  No remittitur will issue.

Briefs
Dec 13 2004Written return filed
 
Feb 2 2005Reply to return filed
 
Jul 31 2008Response brief re referee's report (fully briefed)
 
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
May 24, 2010
Annotated by aronson7

Tags: capital punishment, death penalty, habeas corpus, ineffective assistance of counsel, juror misconduct, order to show cause, referee, voir dire

Summary
A unanimous California Supreme Court discharged an order to show cause following petitioner’s murder conviction and death penalty sentence. Giving great weight to the findings of an appointed referee, the Court found that petitioner, Clifford Stanley Bolden, failed to prove by a preponderance of the evidence that he was denied effective assistance of counsel at trial, or that Juror Jose S. was biased against him or committed juror misconduct. Other claims set forth in the petitioner’s writ of habeas corpus petition were denied by a separate order.

Procedural Posture
A jury convicted petitioner Clifford Stanley Bolden of the first degree murder and robbery of Henry Michael Pedersen. Bolden was sentenced to death for the murder, and the trial court denied the automatic motion to modify the penalty. On automatic appeal the Supreme Court of California affirmed this judgment. Bolden petitioned for a writ of habeas corpus, seeking relief.

Facts
On his petition for a writ of habeas corpus, Bolden argued that the attorney appointed to represent him in the capital trial provided ineffective assistance by failing to ask prospective jurors about their prior acquaintance with the victim Pedersen. Bolden argued that one of the alternate jurors, Jose S., claimed to be acquainted with the victim, that he prejudged the issue of penalty, and that he failed or refused to deliberate on the issue of penalty. The court issued an order to show cause limited to these claims, appointing the superior court judge Mary C. Morgan to serve as the referee for the evidentiary hearing.

At the evidentiary hearing the referee found that Juror Jose S. was not personally acquainted with the victim Pedersen, that he did not prejudge the issue of penalty, and that he did deliberate with the other jurors on the issue of penalty.

Issues
Did the petitioner prove by a preponderance of the evidence that he was denied effective assistance of counsel at trial, or that Juror Jose S. was biased against him or committed misconduct by prejudging the issue of penalty, or by failing or refusing to deliberate on the issue of penalty? The issue hinged on the following evidentiary questions:
1. Was Juror Jose S. personally acquainted with the victim Henry Pedersen?
2. If Jose S. was personally acquainted with Henry Pedersen, would he have disclosed that fact in response to a specific question on voir dire?
3. Did Jose S. prejudge the issue of penalty?
4. Did Jose S. engage in deliberations on the issue of penalty, or did he fail or refuse to deliberate?

Analysis
The court’s analysis focused on the referee’s findings at the evidentiary hearing, and on the petitioner’s exceptions to those findings. With respect to the first two issues, petitioner claimed that his attorney provided ineffective assistance by failing to ask prospective jurors about their prior acquaintance with the victim. However, the referee found that the petitioner had failed to establish that the juror in question, Jose S., was acquainted with the victim. Absent any shown acquaintance, the failure of petitioner’s lawyer to ask the jurors about their personal acquaintances with the victim was not viable grounds for showing ineffective assistance of counsel. With respect to the petitioner’s assertion that Juror Jose S. had prejudged the issue of penalty and had refused to deliberate on that issue, the referee found no evidence of prejudgment or refusal or failure to deliberate.

In deferring to the referee’s findings, the Court also rejected the petitioner’s exceptions to those findings, including Bolden’s argument that his claim was not based on the actual acquaintance of Jose S. and the victim, but on Jose S.’s withholding of relevant information from the trial court. The court viewed this argument as a concession that petitioner was not asserting the existence of any actual acquaintance between Jose S. and the victim.

Holding
Giving great weight to the referee’s credibility determinations and factual findings, the Court held that the petitioner failed to prove by a preponderance of the evidence that he was denied effective assistance of counsel at trial, or that Juror Jose S. was biased against him or committed misconduct by prejudging the issue of penalty, or by failing or refusing to deliberate on the issue of penalty. The order to show cause was discharged.

Annotation by Alex Aronson