Stanford Law School - Robert Crown Law Library

Filed 8/23/04

IN THE SUPREME COURT OF CALIFORNIA

In re
S067491
RONALD HAROLD SEATON
on Habeas Corpus.

Petitioner Ronald Harold Seaton was sentenced to death after his
conviction of murder (Pen. Code, § 187)1 with burglary-murder and robbery-
murder special circumstances (§ 190.2, subd. (a)(17)(A) & (G)). On his automatic
appeal, we affirmed the judgment. (People v. Seaton (2001) 26 Cal.4th 598.)
The petition for writ of habeas corpus challenges his capital murder
conviction on numerous grounds. Four of those pertain to matters that petitioner
could not have raised on appeal because of his failure to raise them in the trial
court by a pretrial motion.2 We issued an order to show cause to determine
whether this failure also precludes consideration of those issues in a
postconviction habeas corpus proceeding. We conclude it does, unless the claim

1
Unless otherwise stated, all further statutory references are to the Penal
Code.

2
The remaining claims in the petition for habeas corpus were not included in
our order to show cause. We will dispose of those claims in a separate order to be
filed upon the finality of this opinion.

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depends substantially upon facts that the petitioner did not know, and could not
reasonably have known, at the time of trial.
I
On January 25, 1998, petitioner filed this habeas corpus petition.
In claim II.A., petitioner contends that his murder conviction, the jury’s
special circumstance findings, and his sentence of death should be vacated because
the prosecutor’s decision to seek the death penalty was motivated by petitioner’s
“race [African-American], and/or the publicity attending this case, and/or the lack
of guidelines for such matters in the prosecutor’s office, and/or the arbitrary
practices of the prosecutors involved in making all decisions regarding Petitioner’s
case.”
In claim II.B., petitioner asserts that his death sentence should be vacated
because the prosecutor’s decision to seek the death penalty was improperly based
on the prosecutor’s inaccurate belief that petitioner had a prior conviction in
Michigan for a crime described as “Assault Less than Murder.”
In claim II.C., petitioner argues that his death sentence should be vacated
because the prosecutor’s decision to seek the death penalty against him was
improperly based on financial and political considerations.
In claim V.A., petitioner contends that his murder conviction, the special
circumstance findings, and his death sentence should be vacated because Riverside
County deliberately manipulated the racial composition of its panels of
prospective jurors, resulting in a substantial underrepresentation of African-
Americans and Hispanics in the panel assigned to his case.
Petitioner alleges that the conduct underlying those claims violated “the
First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S.
Constitution and Article I, sections 1, 7, 9, 12, 13, 14, 15, 16, 17, 24, 27, 28, and
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30 of the California Constitution, as well as the statutory and decisional law of the
State of California and rights under Penal Code section 1473.”
Petitioner did not raise any of these four claims at trial. The Attorney
General argues that his failure to do so now bars him from raising them in this
habeas corpus proceeding.
II
Penal Code section 1259 provides: “Upon an appeal taken by the
defendant, the appellate court may . . . review any question of law involved in any
ruling, order, instruction, or thing whatsoever said or done at the trial or prior to or
after judgment, which thing was said or done after objection made in and
considered by the lower court, and which affected the substantial rights of the
defendant.” (Italics added.) Thus, as a general rule, “the failure to object to errors
committed at trial relieves the reviewing court of the obligation to consider those
errors on appeal.” (Fischer et al., Appeals and Writs in Criminal Cases (2d ed.
2000) § 1D.26, pp. 182-183; see also 4 Cal.Jur.3d (1998) Appellate Review,
§ 175, pp. 233-234.) This applies to claims based on statutory violations, as well
as claims based on violations of fundamental constitutional rights. (People
v. Barnum (2003) 29 Cal.4th 1210, 1224, fn. 2; People v. Saunders (1993) 5
Cal.4th 580, 590; see also Peretz v. United States (1991) 501 U.S. 923, 936-937.)
The reasons for the rule are these: “ ‘In the hurry of the trial many things
may be, and are, overlooked which would readily have been rectified had attention
been called to them. The law casts upon the party the duty of looking after his
legal rights and calling the judge’s attention to any infringement of them. If any
other rule were to obtain, the party would in most cases be careful to be silent as to
his objections until it would be too late to obviate them, and the result would be
that few judgments would stand the test of an appeal.’ ” (Sommer v. Martin
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(1921) 55 Cal.App. 603, 610, quoted with approval in People v. Saunders, supra,
5 Cal.4th at p. 590.)
To consider on appeal a defendant’s claims of error that were not objected
to at trial “would deprive the People of the opportunity to cure the defect at trial
and would ‘permit the defendant to gamble on an acquittal at his trial secure in the
knowledge that a conviction would be reversed on appeal.’ ” (People v. Rogers
(1978) 21 Cal.3d 542, 548.) There are various reasons why a criminal defendant
might choose not to object at trial to a perceived error. The defendant may believe
that the error has not actually caused any harm. This example comes to mind: At
trial, the defense realizes that the venire of prospective jurors does not represent a
fair cross-section of the community. There is no objection because the defense
thinks, for whatever reason, that the likelihood of prevailing at trial with the
particular prospective jurors that have been summoned may be greater than with a
more representative selection. If the defense loses its gamble, and the defendant is
convicted, the defense’s deliberate tactical decision not to raise the issue at trial
should bar its consideration on appeal.
If the perceived error is harmful to the defense, a defendant nonetheless
might choose not to object simply to gain the proverbial “two bites at the apple.”
In other words, if the error could be asserted for first time on appeal, and a
judgment of conviction reversed, the charges will have to be retried, and the
defendant will have two opportunities for acquittal. Moreover, the defense may
have reason to expect that the prosecution’s evidence will be weaker because of
the death of witnesses, fading of memories, or loss of physical evidence in a
second trial after an appellate reversal.
For the reasons described above, petitioner was not entitled to raise on
appeal any of the four claims at issue here. (See People v. Lucas (1995) 12
Cal.4th 415, 476-477 [claim that prosecutor’s charging decision violated the
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defendant’s constitutional rights is forfeited because not raised at trial]; People
v. Howard (1992) 1 Cal.4th 1132, 1159 [claim that minority group was
underrepresented in the jury venire forfeited because not raised at trial].)
Petitioner does not contend otherwise.
Petitioner argues, however, that because this is not an appeal but a habeas
corpus proceeding, the forfeiture rule does not apply. He asserts that whether a
claim can be raised in a habeas corpus proceeding depends on the nature of the
claim, not on whether it was raised at trial. Citing In re Harris (1993) 5 Cal.4th
813, 834 (Harris), he contends that even if not raised at trial, claims of
constitutional error that are “clear and fundamental, and strike[] at the heart of the
trial process” can be raised on habeas corpus.
In Harris, we first discussed the Waltreus rule (In re Waltreus (1965) 62
Cal.2d 218, 225), which precludes a habeas corpus petitioner from raising a claim
that was raised and rejected on appeal. We then discussed the Dixon rule (In re
Dixon (1953) 41 Cal.2d 756, 759), which bars a habeas corpus petitioner from
raising a claim that was not, but should have been, raised on appeal. We held that
neither rule bars a claim of constitutional error that is “clear and fundamental, and
strikes at the heart of the trial process.” (Harris, supra, 5 Cal.4th at p. 834.)
Harris does indeed allow a convicted defendant to file a habeas corpus
petition raising claims of fundamental constitutional error even when those claims
were previously rejected on appeal, or when the defendant did not, but should
have, raised them on appeal. But Harris said nothing about allowing a defendant
to raise such claims in a habeas corpus proceeding when no objection was made at
trial. A criminal defendant, like any other party to an action, may not sit on his or
her rights. Thus, just as a defendant generally may not raise on appeal a claim not
raised at trial (see pp. 3-4, ante), a defendant should not be allowed to raise on
habeas corpus an issue that could have been presented at trial. If a claim that was
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forfeited for appeal could nonetheless be raised in a habeas corpus proceeding, the
main purpose of the forfeiture rule—to encourage prompt correction of trial errors
and thereby avoid unnecessary retrials—would be defeated.
This does not mean, however, that there is no recourse when a defendant’s
rights are violated at trial and defense counsel does not object. If counsel’s
omission falls “below an object standard of reasonableness . . . under prevailing
professional norms” (Strickland v. Washington (1984) 466 U.S. 668, 687-688), the
defendant may assert the error in a habeas corpus petition “clothed in ‘ineffective
assistance of counsel’ raiment.” (Harris, supra, 5 Cal.4th at p. 833.) The
defendant would be entitled to habeas corpus relief if there is a “reasonable
probability” (Strickland v. Washington, supra, 466 U.S. at p. 694) that defense
counsel’s incompetence in not objecting affected the trial’s outcome.3
Nor is a defendant without recourse when crucial evidence establishing the
violation does not come to light until after the trial. A defendant is under no duty
to object at trial if the defendant does not know, and could not reasonably

3
Justice Brown’s concurring opinion asserts that barring claims for failure to
object at trial is a “quintessential form-over-substance rule” because a petitioner
can simply “recast” the barred claim as one of ineffective assistance of counsel.
(Conc. opn., post, at p. 1.) A petitioner can always claim trial counsel was
ineffective for not objecting. Doing so, however, does not “recast” the same
claim. Unlike a claim of trial error, a claim of ineffective assistance of counsel
based on a failure to object cannot succeed unless the petitioner shows that the
failure to object fell “below an object standard of reasonableness . . . under
prevailing professional norms” (Strickland v. Washington, supra, 466 U.S. at
pp. 687-688.) Attorneys often choose not to object for reasons that have no
bearing on their competence as counsel. As this court said in an opinion by
Justice Brown, “even when there was a basis for objection, ‘ “[w]hether to object
to inadmissible evidence is a tactical decision,” ’ ” and “ ‘ “trial counsel’s tactical
decisions are accorded substantial deference . . . .” ’ ” (People v. Majors (1998)
18 Cal.4th 385, 403.)
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discover, the facts supporting the objection. If, for example, the prosecution fails
to disclose to the defense any material exculpatory evidence (see Brady v.
Maryland (1963) 373 U.S. 83), the defense may not learn of the undisclosed
evidence until long after the trial has been completed. Therefore, when a claim
depends substantially on facts that the defense was unaware of and could not
reasonably have known at trial, a failure to object at trial will not bar consideration
of the claim in a habeas corpus proceeding. We caution, however, that this
exception applies only when the later discovered facts are essential to the claim.
A habeas corpus petitioner may not avoid this procedural bar by relying on facts
that, although newly learned, add nothing of substance to what the defense knew
or should have known at the time of trial. (See In re Robbins (1998) 18 Cal.4th
770, 814, fn. 34.)
We now apply these principles to each of the four claims at issue here.
III
A. Claim II.A.
Petitioner contends that his murder conviction, the jury’s special
circumstance findings, and his sentence of death should be vacated because the
prosecutor’s decision to seek the death penalty was motivated by petitioner’s “race
[African-American], and/or the publicity attending this case, and/or the lack of
guidelines for such matters in the prosecutor’s office, and/or the arbitrary practices
of the prosecutors involved in making all decisions regarding Petitioner’s case.”
Petitioner cites statistics showing that in Riverside County during the years
1978-1990, African-Americans comprised only 5 percent of the population and
were accused of committing only 18 percent of the homicides, but they received
80 percent of the death sentences. Petitioner presents documentary evidence that
African-Americans were victims of racial segregation in Riverside County
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throughout the first half of the 20th century, and that Ku Klux Klan activities and
instances of housing discrimination in the county persisted into the 1980’s. In
addition, petitioner asserts that a Hispanic prosecutor working in the Riverside
District Attorney’s office at the time of petitioner’s capital trial complained of
racial slurs by colleagues, and that an African-American investigator working in
that same office a few years earlier had been given a “pen set” consisting of a
watermelon with two pens stuck in it.4
In essence, claim II.A. consists of two separate allegations: (1) the
prosecutor’s decision to seek the death penalty in this case was based on a lack of
guidelines in the district attorney’s office, and (2) the prosecution’s decision to
seek the death penalty was based on petitioner’s race. With regard to the first
contention, petitioner does not allege that it is based on facts discovered after trial.
At oral argument, he asserted that the prosecution suppressed evidence pertaining
to this claim, but he alleged no facts in support. Thus, the issue could have been
raised at trial, and petitioner’s failure to do so bars its consideration in this habeas
corpus proceeding. The second assertion, by contrast, is based on 1990 census
figures, California Department of Justice statistics for the years 1978-1990, and
information supplied by the American Civil Liberties Union in 1991. Petitioner’s
trial began in 1988 and ended in 1989, before these statistics were published.
Although petitioner could probably have obtained at trial some of the statistics on
which he now relies, we conclude that the claim depends substantially on facts
that he was unaware of and could not reasonably have known at trial. Thus, this
claim may be raised on habeas corpus. It is, however, without merit, as explained
below.

4
Petitioner claims these allegations are documented in exhibit 51 of his
petition, but we find nothing in that exhibit substantiating these alleged facts.
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As noted earlier, the primary evidence on which petitioner relies to support
his claim that he was singled out for the death penalty because of his race consists
of statistical evidence that between 1974 and 1990 African-Americans, although
they were accused of committing only about 18 percent of the homicides, received
80 percent of the death penalties in Riverside County. But petitioner does not
mention the percentage of African-Americans among the cases in which the
prosecution sought the death penalty. Such a statistic would have greater bearing
on determining racial bias in the prosecutor’s charging decision: It is possible, for
example, that only 18 percent of the cases in which the prosecutor sought the
death penalty involved African-American defendants.
Moreover, even if petitioner had presented more pertinent statistics, such
evidence, standing alone, would not establish a claim of racial bias in seeking the
death penalty: A purely statistical showing that does not “describe or analyze the
facts or circumstances of any case, other than the sentence and race of [the]
victim” (People v. McPeters (1990) 2 Cal.4th 1148, 1170) does not even entitle a
defendant to obtain discovery of the district attorney’s charging practices (ibid.;
see also McCleskey v. Kemp (1987) 481 U.S. 279, 296 [rejecting statistically based
claim that a prosecutor’s decision to seek the death penalty was racially motivated
because “the policy considerations behind a prosecutor’s traditionally ‘wide
discretion’ suggest the impropriety of our requiring prosecutors to defend their
decisions to seek death penalties, ‘often years after they were made’ ”]); it
therefore does not justify habeas corpus relief. Nor does evidence of a history of
racial segregation in Riverside County and racial slurs by deputies in the Riverside
County District Attorney’s Office bolster petitioner’s claim, for he offers no
evidence that it was this background that influenced the decision to seek the death
penalty against him or that the decision makers themselves uttered racial slurs.
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In short, petitioner has not established a prima facie case that the
prosecution’s decision to seek the death penalty against him was based on his race.
Petitioner accuses his trial counsel of incompetence for not arguing at trial
that the prosecutor’s decision to seek the death penalty was based on a lack of
guidelines in the district attorney’s office. As we explained earlier (see ante,
pp. 5-6), claims that trial counsel was incompetent are not procedurally barred by
a petitioner’s failure to raise them, so petitioner may now raise this claim.
Nevertheless, it lacks merit. No statute or constitutional provision requires a
district attorney to have guidelines on when to seek the death penalty. (See
generally People v. Lucas, supra, 12 Cal.4th at p. 477.) Thus, had defense counsel
raised at trial the issue of guidelines, the trial court likely would have denied the
motion. Hence, counsel cannot be faulted for not making this argument.
B. Claim II.B.
Petitioner asserts his death sentence should be vacated because the
prosecutor’s decision to seek the death penalty was based on his incorrect belief
that petitioner had a prior conviction in Michigan for a crime described as
“Assault Less than Murder.” The information filed in superior court initially
alleged this offense as a prior conviction. The prosecution later learned that the
Michigan Supreme Court had reversed the conviction, and that on retrial petitioner
was found not guilty. The jury at petitioner’s trial never learned of the prior
offense. Petitioner has submitted exhibits documenting his acquittal of that
offense. He has also provided a declaration from his trial counsel stating that,
after the preliminary hearing, the prosecutor who was initially assigned to
petitioner’s case mentioned the prior conviction as a reason for rejecting defense
counsel’s attempt to “plea bargain” the case.
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All of these facts were known to petitioner at the time of trial. Thus, his
failure to raise this claim at trial bars him from now raising it on habeas corpus.
Petitioner also accuses his trial counsel of incompetence for not raising this
claim at trial. Although petitioner is not procedurally barred from asserting
counsel’s incompetence (see ante, pp. 5-6), he is not entitled to relief, as discussed
below.
We know of no legal authority, and petitioner cites none, holding that a
defendant’s statutory or constitutional rights are violated when a prosecutor seeks
the death penalty based on a good faith but mistaken belief that the defendant has
a prior conviction. Of necessity, prosecutors must base their charging decisions
on the information available to them. Occasionally, some of that information may
turn out to be incorrect. So long as the inaccurate information does not form the
basis for a jury’s imposition of the death penalty, reliance on such information by
the prosecutor in seeking the death penalty does not violate the defendant’s
statutory or constitutional rights. Therefore, trial counsel here cannot be faulted
for not raising at trial the claim at issue.
C. Claim II.C.
Petitioner contends his death sentence should be vacated because the
prosecutor’s decision to seek the death penalty against him was improperly based
on “financial and political considerations.” In support, petitioner points to an
advertisement by the Riverside Deputy District Attorneys’ Association in a local
newspaper while his capital trial was pending. The advertisement sought public
support in a contract dispute with the Riverside County Board of Supervisors, and
it implied that the board’s refusal to agree to the salary increase sought would
undermine the prosecution of serious cases. Petitioner refers to a local newspaper
story that was published shortly before his trial and discussed the salary dispute in
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detail. But the existence of the advertisement and the newspaper article was or
should have been known to petitioner at the time of trial. Therefore, he may not
now raise this claim on habeas corpus.
In an effort to support his claim of “political considerations,” petitioner
alleges that, after petitioner’s trial, Dan Lough, the prosecutor in his case, touted
his aggressive record in capital cases during Lough’s campaign for the position of
district attorney in nearby San Bernardino County. But petitioner has not alleged
any specific statements that Prosecutor Lough made during the campaign. (See In
re Swain (1949) 34 Cal.2d 300, 304 [a petitioner must “allege with particularity
the facts upon which he would have a final judgment overturned”].) And
petitioner has not supported his vague allegations about Lough with any
documentary evidence discovered by petitioner after his trial, such as copies of
Lough’s speeches touting his record or declarations from persons who heard the
speeches. (See People v. Duvall (1995) 9 Cal.4th 464, 474 [petition should
contain “reasonably available documentary evidence supporting the claim . . .”].)
Thus, petitioner’s allegations regarding posttrial events add nothing of substance
to his claim, and so they do not preclude application of the general rule barring in
habeas corpus proceedings claims of prosecutorial bias or misconduct that were
not raised at trial.
Petitioner also faults his trial counsel for not presenting this claim of
“financial and political” motivation by Prosecutor Lough and the attorneys in the
prosecutor’s office who were members of the Riverside County Deputy District
Attorneys’ Association. Although a claim of ineffective assistance of counsel may
be asserted for the first time in a petition for writ of habeas corpus, petitioner’s
claim here is lacking in merit. Petitioner has not alleged that it was either
prosecutor Lough or the attorneys in the District Attorneys’ Association who made
the decision to seek the death penalty against him, and the decision may well have
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been made by the Riverside County District Attorney himself. Thus, petitioner
has not alleged specific facts demonstrating that his trial counsel performed
deficiently by not raising this issue at trial.
D. Claim V.A.
Petitioner contends that we should vacate his murder conviction, the special
circumstance findings, and his death sentence because Riverside County
deliberately manipulated the racial composition of its panels of prospective jurors,
thus resulting in a substantial underrepresentation of African-Americans and
Hispanics on his panel.
Petitioner points out that 15 months before his trial began, a superior court
ruled in People v. Neidiffer & Cruz (Super. Ct. Riverside Co., 1987, No. CR-
24472) that Riverside County’s jury selection was unconstitutional because it
systematically underrepresented Hispanics, young adults, and low-income
residents. The court ordered substantial modifications to the county’s jury
selection process for that case. (See People v. Jackson (1996) 13 Cal.4th 1164,
1192-1193 [discussing the decision in Neidiffer & Cruz].) The court’s ruling
relied heavily on a study by Professor Edgar Butler of the University of California
at Riverside.
Petitioner alleges that while his own jury was being selected, jury selection
was taking place in another death penalty case (People v. Niles; see People v. Niles
(1991) 233 Cal.App.3d 315 [affirming defendant Niles’s murder conviction]), in
which the prosecution knew the defense had hired Dr. Butler to monitor the racial
composition of the panel of prospective jurors. To ensure that the panel in Niles
would be immune from constitutional challenge, petitioner alleges, jury officials
manipulated the racial composition of jury panels so they could assign a large
number of minority jurors to the Niles panel. As a result, petitioner asserts,
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minority jurors were overrepresented on the Niles panel and underrepresented on
other panels, including his own, chosen at or near the same time.
Petitioner relies on a statistical analysis by Dr. Butler, who had also assisted
the defense in People v. Neidiffer & Cruz and in People v. Niles. According to
Dr. Butler, the Niles jury panel had a substantial overrepresentation of African-
American and Hispanic prospective jurors. In petitioner’s case, Dr. Butler found a
substantial underrepresentation of African-American and Hispanic prospective
jurors. Dr. Butler considered it “inconceivable that two jury panels selected from
the same population at the same time by a random process would have such
divergent proportions of minorities as did the Niles and Seaton panels . . . .”
All of the evidence on which petitioner relies was either known or could
have been known by his attorney at the time of trial. Although petitioner notes
that Dr. Butler did not prepare his study analyzing the two trials until after
petitioner’s trial was long over, nothing prevented petitioner from hiring Dr.
Butler or some other expert to monitor the jury panel in his case as was done in the
Niles case and to conduct at the time of trial the statistical analysis that Dr. Butler
performed after the trial. Petitioner also asserts that Riverside County deliberately
concealed its alleged manipulation of the jury pool from him, but he alleges no
specific facts that, if true, would establish such concealment. Thus, petitioner’s
failure at trial to object to the jury panel precludes him from now raising this issue
on habeas corpus.
Petitioner accuses his trial counsel of incompetence for not raising the
claim in question at trial. His contention that counsel was incompetent is not
procedurally barred (see ante, pp. 5-6), but it lacks merit, as discussed below.
Petitioner argues his attorney should have objected to the panel of
prospective jurors on the ground that the manner in which it was selected violated
his constitutional right to a jury composed of a fair cross-section of the community.
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Our first inquiry is whether counsel may have had a legitimate tactical basis for not
objecting. Conceivably, because the victim in this case was African-American, as
was petitioner, defense counsel might have been of the view that a panel of
prospective jurors with a larger percentage of African-Americans would be more
likely to convict defendant of murder and impose the death sentence than the panel
actually summoned. But we have a declaration from petitioner’s trial attorney that
he viewed the panel actually summoned as very unfavorable to petitioner, and that
he did not “monitor” petitioner’s jury panel for underrepresentation of minorities
because his office was using People v. Niles as a basis for determining whether
Riverside County’s method of selecting prospective jurors was proper. Counsel’s
declaration suggests that he had no tactical reason for not objecting, and that his
office decided to raise the issue in only one case, Niles, to conserve resources.
Nevertheless, petitioner has not shown that had his attorney objected to the
composition of the panel of prospective jurors, the trial court would have sustained
the objection. “In order to establish a prima facie violation of the fair-cross-
section requirement, the defendant must show (1) that the group alleged to be
excluded is a ‘distinctive’ group in the community; (2) that the representation of
this group in venires from which juries are selected is not fair and reasonable in
relation to the number of such persons in the community; and (3) that this
underrepresentation is due to systematic exclusion of the group in the jury-
selection process.” (Duren v. Missouri (1979) 439 U.S. 357, 364.) Assuming that
petitioner’s trial counsel could have satisfied the first two prongs of this test,
petitioner has not alleged facts showing that counsel could have satisfied the third
prong.
As we have said in a previous case: “A defendant does not discharge the
burden of demonstrating that the underrepresentation [of a racial or ethnic group]
was due to systematic exclusion merely by offering statistical evidence of a
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disparity. A defendant must show, in addition, that the disparity is the result of an
improper feature of the jury selection process.” (People v. Burgener (2003) 29
Cal.4th 833, 857 (Burgener).) In Burgener, the defendant relied on a declaration
by Dr. Butler, the same expert used by petitioner here, who stated that the
statistical evidence of a disparity was so strong that there was “ ‘probably one
chance in 10,000 that that would have happened by chance.’ ” (Id. at p. 858.)
Nevertheless, we upheld the trial court’s ruling that the defendant had failed to
show that the disparity was the result of systematic exclusion.
Our holding in Burgener, supra, 29 Cal.4th at pages 857 to 858, is
dispositive of petitioner’s claim here that his trial counsel should have challenged
the panel of prospective jurors. A successful challenge would have required
evidence that the jury commissioner was deliberately removing minority jurors
from other jury panels and placing them in the Niles jury panel; statistical
evidence of a disparity would not have sufficed. Petitioner does not allege facts
demonstrating that his trial counsel could have presented the required evidence.
CONCLUSION
The order to show cause is discharged.
KENNARD,
J.
WE CONCUR:

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

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CONCURRING OPINION BY WERDEGAR, J.

I concur in the judgment. I see no need, however, to announce today that
the newly created procedural bar will apply even to “a claim of constitutional error
that is ‘clear and fundamental, and strikes at the heart of the trial process.’ ” (Maj.
opn., ante, at p. 5, quoting In re Harris (1993) 5 Cal.4th 813, 834.) The majority
does not assert that any of petitioner’s claims meets that high standard. Indeed, as
the majority explains, each of petitioner’s claims ultimately lacks merit, either
because he has failed to state a claim or because he has failed to show prejudice.
Accordingly, I would postpone consideration of exceptions until presented with a
conviction in which the new rule’s application threatens a miscarriage of justice.
(Cf. Harris, supra, at pp. 825-826, 831, 833-834.) To announce that a new rule
will have no exceptions is far too easy when the facts of the case at hand do not
offer a serious test of the rule’s fairness and wisdom.
WERDEGAR, J.
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CONCURRING AND DISSENTING OPINION BY BROWN, J.

I have previously expressed my view that “creating a Byzantine system of
procedural hurdles, each riddled with exceptions and fact-intensive qualifications,
only undermines . . . the goals they purport to serve: integrity of judgments,
finality, and comity.” (In re Gallego (1998) 18 Cal.4th 825, 842 (conc. & dis.
opn. of Brown, J.); see also In re Sanders (1999) 21 Cal.4th 697, 730 (conc. & dis.
opn. of Brown, J.).) Since, at least in the capital context, the court’s internal
practice generally ensures full merit review irrespective of procedural bars (see
Gallego, at p. 852 (conc. & dis. opn. of Brown, J.)), consideration of possible
defaults can only delay finality and invite disregard in the federal courts given the
difficulty in determining whether we invoke them with sufficient regularity. (See
id. at pp. 843-845 (conc. & dis. opn. of Brown, J.).)
In this instance, the majority goes one better, formulating a quintessential
form-over-substance rule. As the majority perforce acknowledges, any failure to
preserve an appealable issue by appropriate objection at trial can—and will—be
raised on habeas corpus, recast as a claim of ineffective assistance of counsel.
(Maj. opn., ante, at p. 6; see People v. Mendoza Tello (1997) 15 Cal.4th 264,
266-267; People v. Pope (1979) 23 Cal.3d 412, 426.) In such a circumstance, we
better serve the purpose of the “Great Writ” (see In re Sanders, supra, 21 Cal.4th
at pp. 703-704; In re Begerow (1901) 133 Cal. 349, 353) and the concern for
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promptly resolving these claims by “abandon[ing] the effort [to erect meaningless
procedural impediments] in favor of the one certainty for ensuring expeditious
review of capital habeas petitions: full merit review without regard to procedural
bars. [Citation.]” (In re Gallego, supra, 18 Cal.4th 825, 851 (conc. & dis. opn. of
Brown, J.).)
Expressing no opinion on the substantive merit of the majority’s discussion
of forfeiture and lack of objection at trial, I agree petitioner has failed to state a
prima facie claim with respect to claims II.A., II.B., II.C., and V.A. and therefore
would deny relief and discharge the order to show cause on that basis.
BROWN, J.
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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion In re Seaton on Habeas Corpus
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding XXX
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S067491
Date Filed: August 23, 2004
__________________________________________________________________________________

Court:

County:
Judge:

__________________________________________________________________________________

Attorneys for Appellant:

Steinhart & Falconer, Piper Rudnick, James T. Fousekis, Roger R. Myers, Dorothy A. Streutker, Joshua K.
Koltun and Lisa M. Sitkin for Petitioner Ronald Harold Seaton.

__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer, Attorney General, David P. Druliner and Robert R. Anderson, Chief Assistant Attorneys
General, Gary W. Schons, Assistant Attorney General, William M. Wood, Laura Whitcomb Halgren,
Adrianne S. Denault, Holly D. Wilkens and Matthew Mulford, Deputy Attorneys General, for Respondent
State of California.

1

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

Roger R. Myers
Piper Rudnick
333 Market Street, 32nd Floor
San Francisco, CA 94105-2150
(415) 777-3999

Matthew Mulford
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92101
(619) 645-2197

2

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Opinion Information

Date:	Docket Number:
Mon, 08/23/2004	S067491

Disposition
Aug 23 2004	Opinion filed

Dockets
Jan 26 1998	Petition for writ of (AA-related) Habeas Corpus filed   (492 Pps)
Jan 26 1998	Filed:   9 Vols of Exhibits in support of Petition
Jan 28 1998	Filed:   Amended certificate of Service to Petition for Writ of Habeas Corpus
Jun 4 1999	Informal response requested   Letter sent to respondent requesting informal response (Rule 60); due 7-6-99. Any reply due within 30 days of service & filing of response.
Jun 29 1999	Application for Extension of Time filed   To file Informal Response.
Jul 2 1999	Extension of Time application Granted   To 9-7-99 To file Informal response
Sep 8 1999	Application for Extension of Time filed   To file Resp's Informal Response.
Sep 10 1999	Extension of Time application Granted   To 11/8/99 To file Resp's Informal Response.
Nov 4 1999	Application for Extension of Time filed   To file Informal Response.
Nov 12 1999	Extension of Time application Granted   To 1/7/2000 To file Informal response
Jan 3 2000	Application for Extension of Time filed   To file Informal Resp.
Jan 18 2000	Extension of Time application Granted   To 3/7/2000 To file Informal Response. no further Eot Are Contemplated.
Mar 7 2000	Informal Response filed (AA)   (one Volume - 136 pages) Including one Volume of Exhibits in support of Informal Response.
Apr 5 2000	Application for Extension of Time filed   To file reply To Informal Response.
Apr 11 2000	Extension of Time application Granted   To 6/5/2000 To file reply To Informal Response.
Jun 2 2000	Application for Extension of Time filed   To file reply To Informal Response.
Jun 8 2000	Extension of Time application Granted   To 8/4/2000 To file reply To Informal Response.
Jul 31 2000	Application for Extension of Time filed   to file reply to informal response.
Aug 9 2000	Extension of Time application Granted   To 10/3/2000 to file reply to informal response.
Oct 2 2000	Application for Extension of Time filed   To file reply to informal response. (4th request)
Oct 11 2000	Extension of Time application Granted   To 12/4/2000 to file reply to informal response.
Dec 1 2000	Application for Extension of Time filed   To file reply to informal response. (5th request)
Dec 12 2000	Extension of Time application Granted   To 1/3/2001 to file reply to informal resposne.
Dec 28 2000	Application for Extension of Time filed   To file reply to informal response (6th request)
Jan 4 2001	Extension of Time application Granted   To 1/20/2001 to file reply to informal response. No further ext. of time are contemplated.
Jan 23 2001	Application for Extension of Time filed   to file reply to informal response.
Jan 29 2001	Extension of Time application Granted   To 2/13/2001 to file reply to informal response. No further ext. of time will be granted.
Feb 13 2001	Reply to Informal Response filed (AA)   1 volume; 142 pages (1 volume Supplemental exhibits in support of reply to informal response)
Oct 24 2001	Order to show cause issued   The Director of Corrections is ordered to show cause before this court, when the matter is placed on calendar, why this court should not consider the merits of claims II. A., II. B., II. C., and V. A. of the petition, notwithstanding petitioner's failure to raise these claims in the trial court. (See generally, In re Harris (1993) 5 Cal.4th 813; People v. Edwards (1991) 54 Cal.3d 787, 826-827.) The return shall be filed on or before November 26, 2001. All discussion or briefing of the merits of any claim set forth in the petition is deferred pending further order of this court. Votes: George, C.J., Kennard, Baxter, Werdegar, Chin and Moreno, J.J.
Nov 20 2001	Request for extension of time filed   To file return to OSC. (1st request)
Nov 28 2001	Extension of time granted   To 12/26/2001 to file return to OSC. After that date no further extension is contemplated.
Dec 26 2001	Written return filed   by resp. (11 pp.)
Jan 11 2002	Request for extension of time filed   To file traverse. (1st request)
Jan 28 2002	Extension of time granted   To 2/25/2002 to file traverse.
Jan 29 2002	Filed:   Suppl. proof of service of application for extension of time to file traverse.
Feb 11 2002	Request for extension of time filed   To file traverse to. (2nd request)
Feb 14 2002	Extension of time granted   To 3/27/2002 to file traverse.
Mar 21 2002	Request for extension of time filed   To file traverse. (3rd request)
Mar 21 2002	Extension of time granted   To 4/26/2002 to file traverse.
Apr 18 2002	Request for extension of time filed   To file traverse. (4th request)
Apr 23 2002	Extension of time granted   To 5/10/2002 to file the traverse. Counsel anticipates filing the brief by 5/10/2002. No further extension is contemplated.
May 10 2002	Request for extension of time filed   To file traverse. (5th request)
May 15 2002	Extension of time granted   To 5/17/2002 to file traverse. Counsel anticipates filing that pleading by 5/17/2002. No further extension will be granted.
May 17 2002	Traverse to return filed   (24 pp. - excluding exhibit)
Aug 30 2002	Note:   Request for order terminating appointment of Dorothy A. Streutker as associate counsel filed this date in related automatic appeal, no. S011425.
Jan 9 2004	Filed:   "Notice of Change in Firm Name."
Apr 5 2004	Oral argument letter sent   advising counsel that case could be scheduled for oral argument as early as the late May calendar, to be held the week of May 24, 2004, in San Francisco, or for the June calendar, to be held the week of June 1 in Los Angeles.
Apr 19 2004	Received:   letter from atty Fousekis, dated 4-16-2004, requesting that oral argument not be set for the late May or early June calendar.
Apr 23 2004	Letter sent to:   atty Fousekis, advising that his request to postpone oral argument has been denied.
Apr 28 2004	Case ordered on calendar   Tuesday May 25, 2004 at 9:00 AM (San Francisco Session).
May 13 2004	Filed letter from:   respondent, dated 5-12-2004, with additional authority.
May 25 2004	Cause argued and submitted
Aug 23 2004	Opinion filed   The order to show cause is discharged. OPINION BY: Kennard, J. --- joined by : George, C. J., Baxter, Chin, Moreno, JJ. CONCURRNG OPINION BY: Werdegar, J. CONCURRING AND DISSENTING OPINION BY: Brown, J.
Sep 7 2004	Rehearing petition filed   by petitioner. (4833 words; 22 pp.)
Sep 7 2004	Received application to file Amicus Curiae Brief   of the Alameda County Public Defender's Office, the California Attorneys for Criminal Justice, the California Public Defenders Association, the Habeas Corpus Resource Center, the Los Angeles County Public Defender's Office and the Sacramento County Public Defender's Office in support of petitioner's petition for rehearing. (application and brief under same cover)
Sep 8 2004	Filed:   Supplemental declaration of service of appellant's petition for rehearing.
Sep 8 2004	Permission to file amicus curiae brief granted   The application of the Alameda County Public Defender's Office, the California Attorneys for Criminal Justice, the California Public Defenders Association, the Habeas Corpus Resource Center, the Los Angeles County Public Defender's Office and the Sacramento County Public Defender's Office for permission to file an amici curiae brief in support of petitioner's petition for rehearing is hereby granted. Any answer thereto may be served and filed by any party on or before September 28, 2004.
Sep 8 2004	Amicus curiae brief filed   by the Alameda County Public Defender's Office, the California Attorneys for Criminal Justice, the California Public Defenders Association, the Habeas Corpus Resource Center, the Los Angeles County Public Defender's Office and the Sacramento County Public Defender's Office, in support of petitioner's petition for rehearing.
Sep 8 2004	Time extended to consider modification or rehearing   to 11/19/2004 or the date upon which rehearing is either granted or denied, whichever occurs first.
Sep 29 2004	Rehearing denied   Opinion modified. Petition for rehearing DENIED. George, C.J., was absent and did not participate.
Sep 29 2004	Opinion modified - no change in judgment
Sep 29 2004	Petition for writ of habeas corpus denied (AA)   The petition for writ of habeas corpus is denied on the merits. The following claims are also denied on the ground that they were raised and rejected on appeal (In re Waltreus (1965) 62 Cal.2d 218, 225), except for petitioner's allegations in these claims that his trial counsel was ineffective: Claims I.C., III.A., V.D., V.F., X.A., X.B., X.C., X.E., XII.A., XII.C., XII.D., XII.E., XII.F., XII.G., XII.H., XII.I., XII.J., XII.K., XII.L., XIV.A., XIV.B., XIV.C., XIV.E., XIV.F., XV. Also denied under Waltreus are petitioner's allegations, in claim I.B., that the prosecutor committed misconduct in not disclosing to the defense that he knew Dr. De Witt Hunter's testimony was false and misleading, that he knew Dr. Hunter's procedures were sloppy and careless, that he misrepresented testimony pertaining to the two-beating theory in closing argument, and that he resurrected his theory that the murder was premeditated and deliberate after telling the trial court he was abandoning it. The following claims are also denied on the ground that they could have been, but were not, raised on appeal (In re Dixon (1953) 41 Cal.2d 756, 759): Petitioner's allegation in claim V.B. that the hardship screening procedure violated various constitutional and statutory rights; and his allegation in claim XIV.D. that to persuade the jury to return a verdict of death the prosecutor used "false impressions" and "racially biased images." The following claims are also denied on the ground that they were forfeited by petitioner's failure to raise them in the trial court (In re Seaton (Aug. 23, 2004) ___ Cal.4th __), except for petitioner's allegations in these claims that his trial counsel was ineffective: Claims II.A., to the extent it alleges that the prosecutor's decision to seek the death penalty was based on a lack of guidelines in the district attorney's office; II.B.; II.C.; V.A; and the allegation, in claim I.B., that the prosecutor misrepresented certain statements made by Thelma Garrett to the police after the murder. Werdegar, J., would deny each of these claims solely on the merits. Brown, J., would deny the entire petition solely on the merits. George, C.J., was absent and did not participate.
Sep 29 2004	Letter sent to:   counsel advising that opinion is now final. No remittitur will issue.

Briefs
Dec 26 2001	Written return filed
May 17 2002	Traverse to return filed
Sep 8 2004	Amicus curiae brief filed

If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website