Supreme Court of California Justia
Docket No. S116670
In re Hawthorne


Filed 2/10/05

IN THE SUPREME COURT OF CALIFORNIA

In re ANDERSON HAWTHORNE, JR.,
S116670
Los Angeles County
on
Habeas
Corpus.
) Super.Ct.No.
A36104

Petitioner Anderson Hawthorne, Jr., is under a judgment of death. He
challenges his sentence as cruel and unusual punishment based on allegations he is
mentally retarded. Under the authority of Penry v. Lynaugh (1989) 492 U.S. 302,
we denied three previous petitions for writ of habeas corpus raising this same
claim. Subsequently, however, the United States Supreme Court overruled Penry
and held that execution of the mentally retarded violates the Eighth Amendment.
(Atkins v. Virginia (2002) 536 U.S. 304, 321 (Atkins).) Thereafter, petitioner filed
this fourth petition asserting a single claim for relief under Atkins.
While the matter was pending, the California Legislature enacted Penal
Code section 1376 (section 1376), which sets forth the standards and procedures
for determining whether a defendant against whom the prosecution seeks the death
penalty is mentally retarded within the meaning of Atkins. (Stats. 2003, ch. 700,
§ 1.) By its terms, section 1376 applies only to preconviction proceedings. We
issued an order to show cause to determine how to resolve postconviction claims
of mental retardation. (Cf. In re Steele (2004) 32 Cal.4th 682.) For the reasons
discussed below, we conclude that such claims should be adjudicated in
substantial conformance with the statutory model. Since petitioner has met the
1



threshold showing of mental retardation, the matter will be transferred to the
superior court for an evidentiary hearing on that question in accordance with the
definitional standards set forth in section 1376.
DISCUSSION
Although, as a constitutional principle, execution of the mentally retarded
violates the Eighth Amendment, the United States Supreme Court “ ‘le[ft] to the
State[s] the task of developing appropriate ways to enforce the constitutional
restriction upon [their] execution of sentences.’ [Citation.]” (Atkins, supra, 536
U.S. at p. 317.) The California Legislature responded by enacting section 1376,
applicable in “any case in which the prosecution seeks the death penalty.”
(§ 1376, subd. (b)(1).) The statute defines “ ‘mentally retarded’ ” as “the
condition of significantly subaverage general intellectual functioning existing
concurrently with deficits in adaptive behavior and manifested before the age of
18.” (Id., subd. (a); see Atkins, at p. 309, fn. 3; see also id. at p. 309, fn. 5.) “Upon
the submission of a declaration by a qualified expert stating his or her opinion that
the defendant is mentally retarded, the court shall order a hearing to determine
whether the defendant is mentally retarded.” (§ 1376, subd. (b)(1).)1 The

1
Section 1376, subdivision (b)(1) provides: “In any case in which the
prosecution seeks the death penalty, the defendant may, at a reasonable time prior
to the commencement of trial, apply for an order directing that a mental
retardation hearing be conducted. Upon the submission of a declaration by a
qualified expert stating his or her opinion that the defendant is mentally retarded,
the court shall order a hearing to determine whether the defendant is mentally
retarded. At the request of the defendant, the court shall conduct the hearing
without a jury prior to the commencement of the trial. The defendant’s request for
a court hearing prior to trial shall constitute a waiver of a jury hearing on the issue
of mental retardation. If the defendant does not request a court hearing, the court
shall order a jury hearing to determine if the defendant is mentally retarded. The
jury hearing on mental retardation shall occur at the conclusion of the phase of the
trial in which the jury has found the defendant guilty with a finding that one or

(footnote continued on next page)
2



defendant may request either that the court hear the claim prior to trial or that the
jury decide the question following a guilty verdict and special circumstance
finding. (Ibid.) The trial court may order the defendant examined by one or more
qualified experts. (Id., subd. (b)(2).)2 The defendant must also submit to an
examination by a prosecution expert. (Centeno v. Superior Court (2004) 117
Cal.App.4th 30, 39-41; cf. People v. Carpenter (1997) 15 Cal.4th 312, 412
[tendering issue of mental condition waives Fifth and Sixth Amendment rights at
penalty phase].) At the hearing, the defendant bears the burden of proof by a
preponderance of the evidence, and any jury verdict must be unanimous.
(§ 1376, subd. (b)(3).)3

(footnote continued from previous page)

more of the special circumstances enumerated in Section 190.2 are true. Except as
provided in paragraph (3), the same jury shall make a finding that the defendant is
mentally retarded, or that the defendant is not mentally retarded.”
2
Section 1376, subdivision (b)(2) provides: “For the purposes of the
procedures set forth in this section, the court or jury shall decide only the question
of the defendant’s mental retardation. The defendant shall present evidence in
support of the claim that he or she is mentally retarded. The prosecution shall
present its case regarding the issue of whether the defendant is mentally retarded.
Each party may offer rebuttal evidence. The court, for good cause in furtherance
of justice, may permit either party to reopen its case to present evidence in support
of or opposition to the claim of retardation. Nothing in this section shall prohibit
the court from making orders reasonably necessary to ensure the production of
evidence sufficient to determine whether or not the defendant is mentally retarded,
including, but not limited to, the appointment of, and examination of the defendant
by, qualified experts. No statement made by the defendant during an examination
ordered by the court shall be admissible in the trial on the defendant’s guilt.”
3
Section 1376, subdivision (b)(3) provides: “At the close of evidence, the
prosecution shall make its final argument, and the defendant shall conclude with
his or her final argument. The burden of proof shall be on the defense to prove by
a preponderance of the evidence that the defendant is mentally retarded. The jury
shall return a verdict that either the defendant is mentally retarded or the defendant
is not mentally retarded. The verdict of the jury shall be unanimous. In any case

(footnote continued on next page)
3



The new legislation makes no provision for cases in which the death
penalty has already been imposed. The task thus falls to this court to formulate
appropriate procedures for resolving postconviction claims.
We are not alone in confronting this gap in the law. Following Penry v.
Lynaugh, supra, 492 U.S. 302, the Georgia Legislature enacted the first statutory
ban on execution of the mentally retarded. Like section 1376, it applies only
preconviction. With respect to postconviction claims, the Georgia Supreme Court
determined in Fleming v. Zant (Ga. 1989) 386 S.E.2d 339, that “[w]hen a
defendant who was tried before the effective date of [the operative statute] alleges
in a petition for habeas corpus that he or she is mentally retarded, the habeas
corpus court must first determine whether the petitioner has presented sufficient
credible evidence, which must include at least one expert diagnosis of mental
retardation, to create a genuine issue regarding petitioner’s retardation. The court,
in its discretion, may hold a hearing on the issue, or may make the determination
based on affidavits, depositions, documents, etc. If, after examining the evidence,
the habeas corpus court finds that there is a genuine issue, a writ shall be granted
for the limited purpose of conducting a trial on the issue of retardation only. This
trial shall be held in the court in which the original trial was conducted. Petitioner
shall be entitled to a full evidentiary hearing on the issue of retardation. The
determination shall be made by a jury using the definition of retardation

(footnote continued from previous page)

in which the jury has been unable to reach a unanimous verdict that the defendant
is mentally retarded, and does not reach a unanimous verdict that the defendant is
not mentally retarded, the court shall dismiss the jury and order a new jury
impaneled to try the issue of mental retardation. The issue of guilt shall not be
tried by the new jury.”
4



enunciated in the statute. [Citation.] The petitioner will bear the burden of
proving retardation by a preponderance of the evidence. The jury shall not be
bound by the opinion testimony of expert witnesses or by test results, but may
weigh and consider all evidence bearing on the issue of mental retardation.” (Id.
at pp. 342-343, fn. omitted; see Zant v. Beck (Ga. 1989) 386 S.E.2d 349, 351; Ga.
Code Ann. § 17-7-131.)
Oklahoma’s statute likewise operates prospectively only. In Lambert v.
State (Okla. 2003) 71 P.3d 30, the Oklahoma Supreme Court addressed a claim of
mental retardation in a case that predated the legislation. Finding that the
defendant had “raised sufficient evidence to create a question of fact on the issue
of mental retardation” (id. at p. 31), the court remanded the question to the trial
court for further proceedings with the following directions: “The hearing [—
solely on the question of Lambert’s mental retardation —] shall be conducted after
complete discovery is afforded both parties under the Oklahoma Criminal
Discovery Code. The District Court shall empanel a jury of twelve persons,
granting each party nine peremptory challenges. As Lambert has the burden of
proof, he shall open his case first, present evidence first, and have the opportunity
to present the first and last closing arguments. Each party may have Lambert
examined by an expert, and may present that expert testimony in support of the
claim that Lambert is or is not mentally retarded by a preponderance of the
evidence. The jury shall be instructed using a modified version of the jury
instruction provided in Murphy [v. State (Okla. 2002) 54 P.3d 556, 567-568, 570
(defining mental retardation in terms substantially similar to section 1376)]. If the
jury finds Lambert has shown he is mentally retarded by a preponderance of the
evidence, it shall indicate that finding on a verdict form.” (Lambert, at pp. 31-32,
fns. omitted; see Murphy, at p. 569.)
5

Neither Ohio nor Louisiana has a statutory bar to executing the mentally
retarded. The holding in Atkins thus left to the state supreme courts the
responsibility of devising appropriate standards and procedures. (See State v.
Williams (La. 2002) 831 So.2d 835; State v. Lott (Ohio 2002) 779 N.E.2d 1011;
see also Wiley v. State (Miss. 2004) 2004 WL 1902428, *3-4 [nonpub. opn.].)
Both courts required a threshold showing of mental retardation. (Williams, at
p. 861 [trial court must have “ ‘reasonable grounds’ to believe a defendant is
mentally retarded”]; Lott, at p. 1014 [based on IQ tests and affidavits of family and
friends, defendant’s mental retardation was “a disputed factual issue”].) The
Louisiana court applied the statutory definition of mental retardation utilized “for
the purpose of determining those individuals who qualify for mental retardation
and developmental disabilities services” (Williams, at p. 853), which is essentially
the same as California’s definition, but with manifestation required by age 22
rather than 18. (Id. at pp. 853-854.) The Ohio court adopted the clinical
definitions referenced in Atkins, which likewise conform to section 1376. (Lott, at
p. 1014.) Both courts provided for an evidentiary hearing and allocated the burden
of proof to the defendant by a preponderance of the evidence. However, they
reserved the question of mental retardation to the trial court only. (Williams, at
pp. 854, 859-860; Lott, at pp. 1015-1016.)
We conclude a similar approach—tracking section 1376 as closely as logic
and practicality permit—is warranted here, both to maintain consistency with our
own legislation and the judicial frameworks adopted in other jurisdictions and to
avoid due process and equal protection implications.
Postconviction claims of mental retardation should be raised by petition for
writ of habeas corpus, which—consistent with our current policies—may be filed
initially in this court. (See Cal. Supreme Ct. Policies Regarding Cases Arising
from Judgments of Death, policy 3, std. 2-1.) To state a prima facie claim for
6

relief, the petition must contain “a declaration by a qualified expert stating his or
her opinion that the [petitioner] is mentally retarded . . . .” (§ 1376, subd. (b)(1).)
Not only must the declarant be a qualified expert, i.e., an individual with
appropriate education, training, and experience, the declaration must explain the
basis for the assessment of mental retardation in light of the statutory standard.
Mentally retarded means “the condition of significantly subaverage general
intellectual functioning existing concurrently with deficits in adaptive behavior
and manifested before the age of 18.” (§ 1376, subd. (a).) The Legislature
derived this standard from the two standard clinical definitions referenced by the
high court in Atkins, supra, 536 U.S. at page 309, footnote 3: “The American
Association on Mental Retardation (AAMR) defines mental retardation as follows:
Mental retardation refers to substantial limitations in present functioning. It is
characterized by significantly subaverage intellectual functioning, existing
concurrently with related limitations in two or more of the following applicable
adaptive skill areas: communication, self-care, home living, social skills,
community use, self-direction, health and safety, functional academics, leisure,
and work. Mental retardation manifests before age 18.’ [Citation.] [¶] The
American Psychiatric Association’s definition is similar: ‘The essential feature of
Mental Retardation is significantly subaverage general intellectual functioning
(Criterion A) that is accompanied by significant limitations in adaptive functioning
in at least two of the following skill areas: communication, self-care, home living,
social/interpersonal skills, use of community resources, self-direction, functional
academic skills, work, leisure, health, and safety (Criterion B). The onset must
occur before age 18 years (Criterion C). Mental Retardation has many different
etiologies and may be seen as a final common pathway of various pathological
processes that affect the functioning of the central nervous system.’ [Citation.]
‘Mild’ mental retardation is typically used to describe people with an IQ level of
7

50-55 to approximately 70. [Citation.]” “It is estimated that between 1 and 3
percent of the population has an IQ between 70 and 75 or lower, which is typically
considered the cutoff IQ for the intellectual prong of the mental retardation
definition. [Citation.]” (Id. at p. 309, fn. 5.)
Accordingly, as with preconviction applications, the expert’s declaration
must set forth a factual basis for finding the petitioner has significantly subaverage
intellectual functioning and deficiencies in adaptive behavior in the categories
enumerated above. The evidence must also establish that the intellectual and
behavioral deficits manifested prior to the age of 18. (See generally People
v. Duvall (1995) 9 Cal.4th 464, 474 [prima facie claim must “state fully and with
particularity the facts on which relief is sought” and “include copies of reasonably
available documentary evidence supporting the claim”].)
With respect to the intellectual prong of section 1376, respondent Attorney
General urges the court to adopt an IQ of 70 as the upper limit for making a prima
facie showing. We decline to do so for several reasons: First, unlike some states,
the California Legislature has chosen not to include a numerical IQ score as part of
the definition of mentally retarded. Respondent cites nothing in the language or
legislative history of section 1376 to support our insertion of a standard the
Legislature has omitted. Moreover, statutes referencing a numerical IQ generally
provide that a defendant is presumptively mentally retarded at or below that level,
rather than—as respondent impliedly argues—that a defendant is presumptively
not mentally retarded above it. (See, e.g., Neb. Rev. Stat. § 28-105.01; N.M. Stat.
Ann. § 31-20A-2.1.) Second, a fixed cutoff is inconsistent with established
clinical definitions (see ante, at pp. 7-8) and fails to recognize that significantly
subaverage intellectual functioning may be established by means other than IQ
testing. Experts also agree that an IQ score below 70 may be anomalous as to an
individual’s intellectual functioning and not indicative of mental impairment. (See
8

Am. Psychiatric Assn., Diagnostic and Statistical Manual of Mental Disorders (4th
ed. 2000) pp. 41-42.) Finally, IQ test scores are insufficiently precise to utilize a
fixed cutoff in this context.4 (See id. at p. 41 [indicating IQ scores are considered
to have a five-point measurement error]; AAMR, Mental Retardation: Definition,
Classification, and Systems of Support (10th ed. 2002) p. 57; Am. Assn. of Mental
Deficiency, Classification in Mental Retardation (8th ed. 1983) p. 11.)
Upon the submission of an appropriate declaration “by a qualified expert”
(§ 1376, subd. (b)(1)), this court will—as a general rule—then issue an order to
show cause returnable in the superior court in which the original trial was held,
with directions to hold a hearing on the question of the petitioner’s mental
retardation. (See In re Hochberg (1970) 2 Cal.3d 870, 873-874 & fn. 2; id. at
pp. 875-876 & fn. 4; see also Griggs v. Superior Court (1976) 16 Cal.3d 341,
347.) In addition to maintaining parity with the statutory scheme, the order for an
evidentiary hearing reflects the consensus that mental retardation is a question of
fact. (See Zant v. Beck, supra, 386 S.E.2d at p. 351; State v. Williams, supra, 831
So.2d at pp. 854-855; Richardson v. State (Md.Ct.Spec.App. 1992) 598 A.2d 1, 3;

4
We also reject respondent’s argument—not raised in his return but in
response to the amicus curiae—that this court should “adopt a forensic test, such
as was contained in In re Ramon M. (1978) 22 Cal.3d 419, 428.” Ramon M. did
not involve the construction of section 1376, but the meaning of “idiocy” when
that mental condition is used as a defense pursuant to Penal Code section 26,
which the defendant claimed he could assert based on his mental retardation.
Adopting the American Law Institute test for mental incapacity defenses
generally, this court agreed, holding “that defendant’s mental retardation
constitutes a defense to criminal conduct if ‘at the time of such conduct as a result
of mental disease or defect he lacks substantial capacity either to appreciate the
criminality of his conduct or to conform his conduct to the requirements of law.’
[Citation.]” (Ramon M., at p. 428.) We find no basis for importing this standard
into section 1376, which contains nothing in its language or legislative history
indicating the Legislature intended an additional subjective component as part of
the definition of mentally retarded.
9



Murphy v. State, supra, 54 P.3d at pp. 568, 570-571.) It is not measured according
to a fixed intelligence test score or a specific adaptive behavior deficiency, but
rather constitutes an assessment of the individual’s overall capacity based on a
consideration of all the relevant evidence. (See, e.g., Rankin v. State (Ark. 1997)
948 S.W.2d 397, 402; Head v. Ferrell (Ga. 2001) 554 S.E.2d 155, 167; Murphy, at
p. 568; see also Atkins, supra, 536 U.S. at pp. 317-318; Cartwright v. State (Ga.
2000) 531 S.E.2d 399, 403-404; State v. Williams, at p. 859.)
With respect to the evidentiary hearing, section 1376 affords preconviction
defendants the alternative of requesting a court proceeding or a jury trial. For
several reasons, we deem it inappropriate to extend the jury trial option to
postconviction claims. First, there is no statutory imperative to do so. Section
1376, subdivision (b)(1), provides that “the same jury [as rendered the guilty
verdict and special circumstance finding] shall make a finding that the defendant is
mentally retarded, or that the defendant is not mentally retarded.” Plainly, that is
not possible post conviction. Although the Legislature could have provided for a
comparable procedure, it chose to limit the enactment to preconviction claims.
Moreover, because preconviction and postconviction defendants are not similarly
situated, the Legislature could rationally distinguish between them for purposes of
a jury trial.
Second, allowing for a jury trial would be inconsistent with established
habeas corpus procedure. While a petitioner is entitled to “a full and fair hearing”
on his prima facie claim, Penal Code section 1484 authorizes only “[t]he Court or
Judge” to hear the proceedings.
Finally, we perceive no constitutional mandate in this regard. In Atkins,
supra, 536 U.S. 304, the Supreme Court expressly left to the states the
responsibility of “ ‘developing appropriate ways to enforce the constitutional
restriction upon [their] execution of sentences.’ [Citation.]” (Id. at p. 317.)
10

Moreover, at least eight states cited by the court as part of the trend to bar
execution of the mentally retarded provide that the question shall be determined by
the court not a jury. (See Ariz. Rev. Stat. § 13-703.02, subds. (G), (H); Ky. Rev.
Stat. Ann. § 532.135, subds. (1), (2); Neb. Rev. Stat. § 28-105.01, subd. (4); N.M.
Stat. Ann. § 31-20A-2.1, subd. (C); N.Y. Code. Crim. Proc. § 400.27, subd. 12(a);
S.D. Codified Laws § 23A-27A-26.3; Tenn. Code Ann. § 39-13-203, subd. (c);
Wash. Rev. Code § 10.95.030, subd. (2); see State v. Williams, supra, 831 So.2d at
pp. 859-860; State v. Lott, supra, 779 N.E.2d at pp. 1015-1016.)
Consistent with section 1376, subdivision (b)(2), the petitioner may be
subject to examination by an expert appointed by the court or designated by the
prosecution, or both. (See Centeno v. Superior Court, supra, 117 Cal.App.4th at
pp. 39-41.) At the hearing, “the court . . . shall decide only the question of the
[petitioner’s] mental retardation.” (§ 1376, subd. (b)(2).) Evidence relating to the
underlying crimes shall be admissible only to the extent relevant on this question.
(Morrison v. State (Ga. 2003) 583 S.E.2d 873, 876; see Lambert v. State, supra, 71
P.3d at p. 31.) The court “shall not be bound by the opinion testimony of expert
witnesses or by test results, but may weigh and consider all evidence bearing on
the issue of mental retardation.” (Fleming v. Zant, supra, 386 S.E.2d at p. 343;
State v. Williams, supra, 831 So.2d at p. 859.) The petitioner shall have the
burden of proving his mental retardation by a preponderance of the evidence. (See
§ 1376, subd. (b)(3).) Review of any ultimate finding shall conform to established
appellate procedures for habeas corpus proceedings. That is, the People may
challenge a finding of mental retardation by appeal to this court (Pen. Code,
§ 1506); the petitioner may challenge a contrary finding by further petition for writ
of habeas corpus to this court.
In this case, petitioner has submitted, among other exhibits in support of his
claim, the declaration of Dale G. Watson, Ph.D., a qualified clinical
11

neuropsychologist practicing in “neuropsychological and psychodiagnostic
assessment, psychotherapy, forensic psychology and in-patient hospital
consultation.” According to his declaration, Watson has reviewed a substantial
amount of background material relating to petitioner’s upbringing, educational
performance, family environment, adaptive behavior, and mental condition. In
addition to considering petitioner’s prior intelligence test results, he “conducted a
comprehensive neuropsychological evaluation” in June and August of 1995, at
which time he “administered a full battery of standard neuropsychological tests,
conducted a mental status examination and clinical review.” As a result, Watson
concluded petitioner “is one of the most profoundly impaired individuals that I
have seen within a forensic population.” He further opined that “based upon
[petitioner’s] obtained IQ scores [most of which show borderline retardation of
70-755] and the history of impairment in adaptive capacities . . . , [petitioner] can
be legitimately classified as being mentally retarded.” That history included
evidence that from early childhood petitioner was a slow learner; had trouble with
basic reading, writing, and arithmetic; and had problems communicating with
others.
Petitioner has also submitted a declaration of George Woods, M.D., who
specializes in psychiatry and neurology. Woods interviewed petitioner but did not
administer any additional intelligence tests. Based upon Woods’s “experience and
education, the review of voluminous documents, [his] interview with [petitioner],

5
A report by Michael P. Maloney, Ph.D., who evaluated petitioner and
administered a number of psychological tests in 1983 while petitioner was
awaiting trial, reflects that “[o]n several performance (nonverbal reasoning)
subtests of the Wechsler Adult Intelligence Scale, he had an estimated I.Q. of
approximately 71. This would place him in the bottom 3% of the population in
terms of overall intellectual ability.”
12



the data and information compiled by other experts whose declarations [he had]
reviewed and [his] review of the historical, medical, psychological and educational
information,” he likewise concluded petitioner “is both mentally retarded and
psychiatrically impaired.”
We find this evidentiary showing sufficient to meet the statutory threshold
entitling petitioner to a hearing on the question of his mental retardation.
Respondent argues that, taken at face value, the various declarations attesting to
petitioner’s intellectual and adaptive deficiencies do not establish mental
retardation within the purview of Atkins, supra, 536 U.S. 304. Rather than negate
petitioner’s prima facie showing, this argument simply highlights the factual
nature of the dispute between the parties—a circumstance particularly appropriate
to a full evidentiary hearing on the ultimate question. (See State v. Williams,
supra, 831 So.2d at pp. 854-855.)
DISPOSITION
The matter is transferred to the Los Angeles County Superior Court with
directions to hold a hearing on the issue of petitioner’s mental retardation
consistent with the views expressed in this opinion.
BROWN, J.
WE CONCUR:

GEORGE,
C.J.
KENNARD,
J.
BAXTER,
J.
WERDEGAR,
J.
CHIN,
J.
MORENO,
J.
13




CONCURRING OPINION BY CHIN, J.

I concur with the majority opinion, which I have signed. I write separately
only to stress that although Penal Code section 1376 (section 1376) states no
particular intelligence quotient (IQ) below which a person must score in order to
be considered mentally retarded, standardized tests like IQ tests remain important.
As the majority opinion explains (maj. opn., ante, at p. 7), section 1376’s standard
is derived from Atkins v. Virginia (2002) 536 U.S. 304 (Atkins). The Atkins court
said that the 70-75 IQ range “is typically considered the cutoff IQ score for the
intellectual function prong of the mental retardation definition.” (Atkins, supra, at
p. 309, fn. 5.) Thus, a person whose IQ score is over 75 is very likely not mentally
retarded, and in many, perhaps most, cases, a petitioner will not be entitled to
relief absent a showing of an IQ at or below the 70-75 range.
Section 1376 defines mental retardation, in part, as including “significantly
subaverage” intellectual functioning. (§ 1376, subd. (a).) The American
Association on Mental Retardation (AAMR) states in its amicus curiae brief that
“the term ‘significantly subaverage’ has been used by mental retardation
professionals to describe the level of impairment found in individuals whose
performance on standardized intelligence tests places them two standard
deviations below the mean; that is, in the lowest two and a half or three percent of
the population.” (Italics added.) This formulation is consistent with the Atkins
court’s statement that between 1 and 3 percent of the population has an IQ
between 70 and 75 or lower, the typical cutoff IQ for the intellectual function
prong. (Atkins, supra, 536 U.S. at p. 309, fn. 5.) Accordingly, to state a prima
1



facie case regarding the intellectual function prong, petitioners must show that
standardized intelligence tests, of which IQ tests are the most common, place them
at least two standard deviations below the mean which, according to the AAMR, is
roughly the lowest 2.5 to 3 percent of the population. They must also show that
this intellectual deficiency manifested before the age of 18.
CHIN,
J.
I Concur:
KENNARD, J.
2

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

Name of Opinion In re Hawthorne on Habeas Corpus
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
XXX
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S166670
Date Filed: February 10, 2005
__________________________________________________________________________________

Court:


County:
Judge:

__________________________________________________________________________________

Attorneys for Appellant:

Maria E. Stratton, Federal Public Defender, Sean Kennedy and Harry Simon, Deputy Federal Public
Defenders, for Petitioner Anderson Hawthorne.

Michael Laurence; Michael J. Hersek, State Public Defender; and Michael Millman for Habeas Corpus
Resource Center, Office of the State Public Defender and California Appellate Project as Amici Curiae on
behalf of Petitioner Anderson Hawthorne.

Michele Uzeta for Protection & Advocacy, Inc., as Amicus Curiae on behalf of Petitioner Anderson
Hawthorne.

John T. Philipsborn and Charles R. Weisselberg for California Attorneys for Criminal Justice as Amicus
Curiae on behalf of Petitioner Anderson Hawthorne.

__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C.
Hamanaka, Assistant Attorney General, john R. Gorey, Keith H. Borjon and Robert S. Henry, Deputy
Attorneys General for Respondent State of California.

James W. Ellis, Steven K. Homer and Carol M. Suzuki for The American Association of Mental
Retardation and The Arc of the United States as Amici Curiae.


1

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

Harry Simon
Deputy Federal Public Defender
321 East Second Street
Los Angeles, CA 90012-4202
(213) 894-2854

Robert S. Henry
Deputy Attorney General
300 South Spring Street
Los Angeles, CA 90013
(213) 897-2257
2


Opinion Information
Date:Docket Number:
Thu, 02/10/2005S116670

Parties
1Hawthorne, Anderson (Petitioner)
San Quentin State Prison
Represented by Federal Public Defender - La
Harry Simon, Deputy Federal Public Defender
321 East Second Street
Los Angeles, CA

2Department Of Corrections (Non-Title Respondent)
Represented by Attorney General - Los Angeles Office
Robert S. Henry, Deputy Attorney General
300 South Spring Street, 5th Floor
Los Angeles, CA

3California Attorneys For Criminal Justice (Amicus curiae)
1225 Eighth St., Suite 150
Sacramento, CA 95814

Represented by John T. Philipsborn
Attorney at Law
507 Polk St., Suite 250
San Francisco, CA

4California Appellate Project (Amicus curiae)
Represented by Patricia Anne Kern
California Appellate Project
101 Second Street, Suite 600
San Francisco, CA

5Protection & Advocacy, Inc. (Amicus curiae)
Represented by Maria Michelle Uzeta
Protection & Advocacy Inc
3580 Wilshire Blvd., Suite 902
Los Angeles, CA

6American Association On Mental Retardation (Amicus curiae)
Represented by James W. Ellis
University of New Mexico School of Law
1117 Stanford, NE
Albuquerque, NM

7Arc Of The United States (Amicus curiae)
8Habeas Corpus Resource Center (Amicus curiae)
Represented by Michael D. Laurence
Habeas Corpus Resource Center
50 Fremont St #1800
San Francisco, CA

9State Public Defender (Amicus curiae)
Represented by Michael J. Hersek
Office of the State Public Defender
221 Main Street, 10th Floor
San Francisco, CA


Disposition
Feb 10 2005Opinion filed

Dockets
Jun 12 2003Petition for writ of (AA-related) Habeas Corpus filed
  by Federal Public Defender. (11 pp. - excluding attached exhibits)
Jun 17 2003Filed:
  supplemental proof of service of petition for writ of habeas corpus.
Jun 18 2003Informal response requested
  (Rule 60); due 7/18/2003. Any reply due within 30 days of service and filing response. If counsel find it necessary to request additional time, the court will consider requests for extensions of time in 30-day increments only.
Jul 11 2003Informal Response filed (AA)
  (16 pp.)
Aug 11 2003Reply to Informal Response filed (AA)
  (7 pp.)
Dec 10 2003Order to show cause issued
  The Director of the Department of Corrections is order to show cause in this court, when the matter is placed on calendar, why the relief prayed for should not be granted on the grounds that petitioner is mentally retarded within the meaning of Atkins v. Virginia (2002) 536 U.S. 304, as alleged in the petition for writ of habeas corpus filed July 12, 2003. The return shall be filed on or before January 9, 2004. Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Brown, and Moreno, JJ.
Jan 8 2004Request for extension of time filed
  to file return to order to show cause. (1st request)
Jan 16 2004Extension of time granted
  to 02/09/04 to file the return to the order to show cause. After that date, only one further extension totaling 30 additional days will be granted. Extension is granted based upon Deputy Attorney General Robert S. Henry's representation that he anticipates filing that pleading by 03/09/04.
Feb 9 2004Request for extension of time filed
  to file return to order to show cause. (2nd request)
Feb 18 2004Extension of time granted
  to 3/3/2004 to file the return to the order to show cause. The court anticipates that after that date, no further extensions will be granted.
Mar 3 2004Written return filed
  by respondent. (13 pp.)
Mar 24 2004Request for extension of time filed
  to file traverse to return to order to show cause. (1st request)
Apr 1 2004Extension of time granted
  to 5/3/2004 to file petitioner's traverse to the return to the order to show cause. No further extensions of time will be granted.
May 3 2004Traverse to return filed
  by Federal Public Defender. (15 pp. - excluding exhibits)
Sep 29 2004Oral argument letter sent
  advising counsel that case could be scheduled for oral argument as early as the December calendar, to be held at a special session at the University of San Diego Law School the week of 12-6-2004.
Oct 6 2004Exhibit(s) filed (AA)
  supplemental exhibits to petition for writ of habeas corpus. (1 volume)
Oct 14 2004Received:
  Letter from respondent, dated 10/12/2004, re opposition to filing of supplemental exhibits to petition for writ of habeas corpus.
Oct 15 2004Received:
  letter from Petitioner, dated 10/15/2004, in response to respondent's letter, of 10/12/2004, in which he objects to the filing of additional exhibits in support of petition for writ of habeas corpus.
Oct 21 2004Filed letter from:
  petitioner, dated 10/21/2004, re respondent's position in the return to the order to show cause.
Oct 26 2004Motion filed (AA)
  by petitioner to establish schedule for filing of amicus briefs.
Oct 29 2004Order filed
  The "Motion to Establish Schedule for Filing of Amicus Briefs," filed October 26, 2004, is granted. The court sets the following schedule for filing of amicus curiae briefs in this court at this stage of the proceedings. Amicus curiae briefs may be served and filed in letter brief form in the San Francisco office of the Supreme Court on or before November 9, 2004. Any reply to an amicus curiae brief may be served and filed in letter brief form in the San Francisco office of the Supreme Court on or before November 15, 2004.
Nov 3 2004Case ordered on calendar
  12/7/04 @ 9am., San Diego
Nov 5 2004Amicus curiae brief filed
  by California Attorneys for Criminal Justice. (10 pp.)
Nov 9 2004Amicus curiae brief filed
  by Protection & Advocacy, Inc. (13 pp.)
Nov 9 2004Amicus curiae brief filed
  by the American Association on Mental Retardation (AAMR) and the ARC of the United States (by attorneys James W. Ellis, Steven K. Homer, Carol M. Suzuki, University of New Mexico School of Law) (4685 words; 19 pp.)
Nov 9 2004Amicus curiae brief filed
  by Habeas Corpus Resource Center. (6 pp.)
Nov 15 2004Filed:
  respondent's letter brief, dated 11-12-2004, replying to briefs of amici curiae. (16 pp.)
Nov 22 2004Received:
  letter from respondent, dated 11/22/2004, re additional authorities for oral argument.
Nov 29 2004Filed:
  letter from petitioner, dated 11-23-2004, in response to respondent's reply to amici briefs.
Dec 1 2004Filed:
  petitioner's request to divide time for oral argument, w/supporting declaration.
Dec 1 2004Order filed
  Petitioner's request to divide time for oral argument is granted.
Dec 7 2004Cause argued and submitted
 
Feb 10 2005Opinion filed
  The matter is transferred to the Los Angeles County Superior Court with directions to hold a hearing on the issue of petitioner's mental retardation consistent with the views expressed in this opinion. Opinion by Brown, J. -----joined by George, C.J., Kennard, Baxter, Werdegar, Chin and Moreno, J.J. Concurring opinion by Chin, J. -----joined by Kennard, J.
Feb 24 2005Rehearing petition filed
  by Federal Public Defender. (7 pp.)
Feb 28 2005Time extended to consider modification or rehearing
  to 5/11/2005, or the date upon which rehearing is either granted or denied, whichever occurs first.
Mar 16 2005Rehearing denied
  Brown, J., was absent and did not participate.
Mar 16 2005Letter sent to:
  counsel advising that case is now final; no remittitur will issue.
Mar 16 2005Case Final
 
Mar 16 2005Letter sent to:
  the Hon. David S. Wesley, Supervising Judge, Criminal Courts (Los Angeles) regarding Atkins hearing.
Apr 11 2005Received:
  copy of minute order from superior court dated March 23, 2005, transferring the case to the Hon. Lance Ito for hearing on the issue of petitioner's mental retardation.
Jun 26 2008Note:
  received copy of Los Angeles Superior Court minute order, dated June 23, 2008, with Judge Lance A. Ito's finding that petitioner has not carried his burden to show that he is mentally retarded.

Briefs
Mar 3 2004Written return filed
 
May 3 2004Traverse to return filed
 
Nov 5 2004Amicus curiae brief filed
 
Nov 9 2004Amicus curiae brief filed
 
Nov 9 2004Amicus curiae brief filed
 
Nov 9 2004Amicus curiae brief filed
 
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